Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

Oct 10, 1966

160 N.L.R.B. 1729 (N.L.R.B. 1966)

MONTGOMERY WARD & CO., INC. 1729,
is to be determined in accordance with the formula prescribed in F. W. Wool-
worth Company, 90 NLRB 289, and interest is to be computed on the amount
so determined in accordance with Isis Plumbing & Heating Co., Inc., 138 NLRB 716.
[Recommended Order omitted from publication ]
Montgomery Ward & Co., Incorporated (Wards Southtown Retail
Store ) and Local Union No. 149, Mail Order Retail Department
Store and Warehouse Employees , International Brotherhood
of Teamsters , Chauffeurs, Warehousemen and Helpers of
America. Case 18-CA-2153. October 10, 1966
DECISION AND ORDER
On June 21, 1966, Trial Examiner Samuel M. Singer issued his.
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action , as set forth in the attached Trial Exam-
iner's Decision . The Trial Examiner also found that the Respondent
had not engaged in certain unfair labor practices alleged in the com-
plaint and recommended that the complaint be dismissed with respect
to these allegations . Thereafter , the Respondent filed exceptions to
the Trial Examiner's Decision and 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 case to a three -member
panel [Chairman McCulloch and Members Brown and Zagoria].
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
Examiner 's Decision, the exceptions and supporting brief, and the
entire record in this case , and hereby adopts the findings , conclusions,
and recommendations of the Trial Examiner.'
[The Board adopted the Trial Examiner's Recommended Order.]
i In adopting the Trial Examiner's finding that the Union's authorization cards were
valid, Member Brown finds the cards valid for the reason that, in his opinion, the best
evidence of employees' intent, i.e , their signatures to cards clearly designating the Union
as employees' bargaining representative, establishes the majority status of the Union
at the time it requested recognition. See Dan Howard Mfg. Co, 158 NLRB 805, footnote 5.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before Trial Examiner
Samuel M. Singer in Minneapolis, Minnesota, on March 16-22, 1966, pursuant to
160 NLRB No. 137.
257-551 -67-vol. 160-110
1730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a charge filed on December 6, 1965, and complaint issued on January 27, 1966.
The complaint alleged that Respondent (herein sometimes called the Company)
violated Section 8(a)(1), (3), and (5) of the Act. Respondent in its answer denied
commission of the alleged unfair labor practices.
All parties were afforded full opportunity to be heard, and to examine and
cross-examine witnesses. All waived oral argument at the end of the hearing.
Briefs were received from General Counsel and Respondent.
Upon the entire record 1 in the case, and from my observation of the witnesses,
I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT, THE LABOR ORGANIZATION INVOLVED
Respondent, an Illinois corporation with its principal place of business at
Chicago, Illinois, is engaged in the sale and distribution of merchandise through
mail-order houses, distribution centers, catalog stores, and retail stores throughout
the United States, including its retail store in Bloomington, Minnesota, the only
facility involved in this proceeding. During the year ending December 31, 1965,
Respondent's gross volume of business at its Bloomington store exceeded $500,000.
Within the same period it purchased and received at that store, directly from sup-
pliers outside Minnesota, products valued in excess of $50,000. I find that at all
times material herein Respondent has been and is an employer engaged in com-
merce within the meaning of the Act.
Local Union No. 149, Mail Order Retail Department Store and Warehouse
Employees, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (herein called the Union) is a labor organization within
the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and sequence of events; the issues
In the summer of 1965, the Union conducted a campaign to organize the auto-
mobile service center of Respondent's Southtown store in Bloomington, Minnesota.
By August 26, 1965,2 12 of the 21 service station employees had signed union
authorization cards. On August 27, the Union requested recognition as majority
representative of these employees. On August 30, the Union filed a petition for an
election. On October 8, after a hearing on the petition, the Regional Director issued
a decision and direction of election, finding the automobile service unit appropriate
and directing an election to be held among the employees in that unit on Novem-
ber 5. The Union lost the election by a 10-to-10 tie and thereafter filed timely
objections to the election. On December 3, the Regional Director issued a supple-
mental decision and direction of second election upholding certain of the Union's
objections and setting the election aside. On January 13, 1966, the Board affirmed
the Regional Director's action.
The complaint alleges that at various times on and after August 26, Respondent
unlawfully interrogated employees concerning their union sympathies and activi-
ties, engaged in surveillance of those activities, and offered employees benefits and
threatened them with reprisals in order to discourage union adherence. It also
alleges that Respondent discriminatorily discharged an employee (Bratsch) because
of his union sympathies and activities; and constructively discharged two others
(Miller and Wersal) for unlawful reasons by repeatedly assigning them to work
which was both disagreeable and below their respective skills. Finally, it alleges
that Respondent unlawfully refused to recognize the Union as majority represent-
ative of its automobile service employees on the basis of authorization cards
obtained by the Union prior to its recognition request.
B. Alleged interference , restraint, and coercion
1. The bowling alley union meeting
The Union held its final organizational meeting prior to requesting recognition
at the Southtown Bowling Alley, about 100 yards from the store, on the evening
1 As corrected by my order on notice dated May 31, 1966.
2 Unless otherwise indicated, all date references are to 1965.
MONTGOMERY WARD & CO., INC. 1731
of August 26. Sitting at the bar, about 150 feet from the meeting room (on the
apposite side), but in a position to observe employees going to the meeting were
company officials Durand (auto service merchandiser), Thompkins (auto service
manager), and Jakubic (assistant night manager). The next day, employee Kath
asked Jakubic,. "What were you doing, watching the people go into the union
meeting?" Jakubic replied, "Yes, we were." 3
Durand testified that he arranged to meet with his two assistants at the bowl-
ing alley after closing the store in order to review the previous week's unfavorable
production figures for the shop; that they met there between 9:20 and 10 p.m. to
"discuss this over a couple of beers" to see if they could reverse the trend; that
the meeting was arranged for that late hour because it was difficult to get his assist-
ants together during working hours; and that he had met with them on business
there on three or four prior occasions since coming to the store in the middle of June.
Durand and Jakubic admitted knowing of the union meeting when (around noon,
August 26 ) Durand fixed the time and place of the managerial meeting , both testi-
fying that it "was common knowledge." Durand indicated that he knew of the
union meeting "earlier in the week ." The record shows that management officials
had on prior occasions met at the Service Club in Jerry's Tavern, as well as at the
bowling alley.
2. The Jerry's Tavern union meeting
Shortly before the November 5 election, the Union held another meeting in the
basement of Jerry's Tavern, across the road from the store. Jakubic, Respondent's
auto service night manager , went there "for a beer" and accosted several employ-
ees. Jakubic often stopped in that tavern after work. He admitted knowing of the
union meeting that night?
3. The September Service Club meeting
Respondent 's auto service center personnel-employees and supervisors-belong
to the Service Club, a social organization where they meet monthly to discuss "a
little business" over food and beer. Employee Miller quoted Thompkins, the auto
service manager and the Club's president, as telling the employees at the Septem-
ber meeting that they "didn't need the union," that they "would be better off"
keeping the $50 or $60 initiation fees and $5 monthly dues; and that he "wanted
to know why [the employees] . needed a union." When Miller pointed out
that the men "needed job protection," Thompkins said that the Union "would not
protect" the employees, adding, "If you think it is tough around here without a
union . . . it can get tougher with a union." According to Miller, Durand (the
auto service merchandiser) then spoke for 20 minutes, elaborating on the job secu-
rity and fees-dues themes; he told the employees "I can be a nice guy" but "I
don't have to be." Noting Miller's silence, Durand asked him to "say something."
When Miller said that "it was [his own] $5 [union dues] and not for [Durand]
to worry about," and asked why "the Company fights the Union so hard," Durand
"got extremely mad," and said that "if I want a tire mounter to go over to the
tire shed after a tire and I have a union . I can't make him go after it." Dur-
and then stated, "if there was a vote taken here tonight, lets have a show of hands
for Montgomery Wards." Three men raised their hands.
Thompkins denied "any discussion concerning the Union" at the meeting and
specifically disavowed saying "If you think it is tough now , wait until the union
gets in." He claimed they only "had small talk at that meeting ." However, he referred
to "an argument" between Durand and employee Kath concerning the latter's
request for job advancement, in which Kath characterized Durand as a mere
"pots and pans salesman" who knew nothing about the automotive business.
Thompkins testified that he was forced to adjourn the meeting "real quickly" and
that Miller "apologized" for Kath's conduct.
Durand , on the other hand , recalled discussing the Union at the September meet-
ing. Although he could not recall all of the details , he remembered telling Miller
8 The above findings are based on the composite testimony of employees Bath, Alm,
Miller, and Wersal. In the light of the entire record, including the testimony of witnesses
called by General Counsel and Respondent , I find that Kath 's recollection that the meet-
ing took place on August 19 is erroneous.
A The above findings are based on the composite testimony of Jakubic and employees
Bratsch, Alm, and Wersal.
1732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that "we hadn't heard from [him] for a while and did he want to say something."
Durand testified:
I believe he asked why we were fighting the union . I might have got a little
hot at that .. . I don 't recall what I said . I said we weren 't fighting the
union . . . but that I felt it was hurting the performance of the shop having
discord that we had out there . And what was said after that , I don't know.
I credit Miller 's version of the incident . It is obvious that his recollection on this
point is more definitive and accurate than Thompkin's and Durand 's. Furthermore,
his testimony is in part corrobrated by Durand's and by that of another employee,
Alm, who also recalled Thompkins ' remark about the "tough" conditions awaiting
the men if the Union got in .5 Certainly , Durand 's testimony is more consistent with
Miller's than with Thompkins '. The latter impressed me as deliberately withholding
facts which he thought would prejudice Respondent 's cause.
4. The coffeeshop meetings
Prior to the November 5 election, Auto Service Manager Thompkins individually
called garage employees into the coffee or snack shop during working hours in
October. He bought them coffee and discussed the impending Board election.
Employee Alm testified that Thompkins asked him "how [he] thought the election
would come out." After stating he "figured it would be real close," Alm asked
.,when we were going to get better working conditions ." Thompkins replied, "it
would be done as soon as possible ." Employee Wersal quoted Thompkins as say-
ing in the coffeeshop "I don't know for sure which side you are on . . . you know
you are going to lose, and I hate to see you get hurt."
Employee Bratsch testified that although Thompkins told him "to be sure to.
vote" irrespective of how he voted, he also said that neither he nor Wards were
"for the Union." Employee Miller testified that Thompkins asked him what he
thought the election results would be. When Miller said he knew how he thought
"it is going to come out ," Thompkins took a napkin, divided it into two columns,
and marked one side "Union" and the other "Wards." Under "Union " he wrote
down five names, including Miller, Wersal, and Bratsch ; under "Wards" he wrote
other names , some with question marks. According to Miller, Thompkins "figured"
the alignment to be 16 to 5 in favor of the Company.
About a week after the coffeeshop interviews, Thompkins arranged another
interview between Brousard (Respondent's labor relations manager and one of its.
attorneys ) and three of the men he had spoken to-Bratsch , Reich , and Austin.
Thompkins testified that those three were selected because when he previously
talked to the men, "they didn 't seem too happy" and he had concluded that "there
was something bothering them ." Bratsch testified that the meeting lasted three-
fourths of an hour. He quoted Brousard as saying that the men should settle their
problems among themselves , and that the Union not only was helpless , but would'
"possibly create more [problems] because another party [would be] in between,
there to work with us." Bratsch spoke up and said that he had been at union meet-
ings and was told that the Union could assist the employees procure higher wages.
and job security so that they would not be fired except for "just cause ." Brousard
replied that "just cause can be most anything ." Bratsch questioned Brousard 's state-
ments that the employees "didn't need a union . why it wouldn't be good" for
the men and the Company. He told Brousard , "I thought it might be better for-
the Company. I have heard other ones say you might get more business because
of a union , customers like to come to a store because it is union ; because it is,
run better." Bi•atscli also quoted Thompkins as asking employee Reich "how he-
would vote, if he knew how he would vote ," to which Reich replied, "right now
be couldn't say either way, he could vote either way."
Brousard , a witness for Respondent , did not contradict the matter attributed to.
him by Bratsch. Nor did Thompkins dispute this portion of Bratsch's testimony,
except that he recalled merely asking Reich ("a hard fellow to get an answer out
of") whether he was prepared to vote in the election : and he did not recall asking-
him (and others in previous interviews ), how they intended to vote. Thompkins
insisted that the gist of his conversations with all employees ' concerned the time-
and importance of the election , his "sole purpose" being to "have these guys come
out and vote."
5 Alm's estimate that the meeting was in October is erroneous.
MONTGOMERY WARD & CO., INC. 1733
On the basis of the entire record , the inherent probabilities , and the comparative
,demeanor of the witnesses, I discredit Thompkins' testimony. As already noted,
Thompkins was less than forthright and his testimony on material matters conflicts
with that of other company witnesses . If, as Thompkins , testified , he did no more
than merely urge the men to vote in the election , why did he steer "close -mouthed"
employees to Brousard? Under all the circumstances, I credit the testimony of
,employees Bratsch, Alm, Wersal, and Miller. Although, as hereafter noted, I have
some reservations about Wersal's total reliability as a witness. I prefer his testimony
to Thompkins'. In this instance, Wersal's version is corroborative of the general pat-
tern of Thompkins' antiunion conduct established by other credible evidence.
5. Beneke 's statements
a. Miller testified that one evening in mid-October, he was waiting for some
.people to get off work to go to a union meeting . In answer to Assistant Manager
Beneke 's question where he was going, he said he was going to the union business
agent to eat roast beef. Beneke "made a few jokes about it" and said , "You know,
if this union don't get in there is going to be four or five of them go" and then
,turned to Miller and said "if it does get in there will be two go for damn sure
and you know who they are." Miller then followed Beneke "on down" and "talked
some more about the union." According to Miller, Beneke always "made kind of
a joke out of it , and it didn't bother me, but that was the extent of it."
Wersal testified that he overheard the conversation between Beneke and Miller.
He claimed that Beneke had made a similar remark to him sometime before while
working on a brake job. According to Wersal, Beneke remarked , "You know, if
this union gets in five or six of these mechanics will be going" and then, looking
directly at Wersal said , "You know who two of them are."
Beneke did not contradict the statement attributed to him by Miller and admitted
telling Wersal that several garage employees would be leaving if the Union came
in. He testified that Wersal started the union conversation by asking "how [he]
thought this thing would come out in the end"; that he thereafter told him "if it
[the Union] did get in that there would be four or five people that would leave
that [he] knew of for sure"; and that it was common knowledge that several part-
timers would quit or ask for a transfer if the Union came in.
Wersal was quite confused as to when and where the incident took place and
his testimony is in some respects inconsistent with his prehearing statement. To
the extent that his account is inconsistent with Beneke 's, I credit the latter. Further-
more, Wersal did not specifically deny that he started the conversation. Both
Wersal's and Miller 's testimony established that they were on very friendly terms
and often lunched together in the coffeeshop.
b. Miller testified that at the end of September or early October he was again
chatting in the coffeeshop with Beneke, when Durand (the auto service head)
walked by. A day or two later, Beneke said that Durand told him "not -to talk"
to him and Wersal because "you are supposed to feel as outsiders. No one is
supposed to talk to you." Beneke testified that he frequently chatted with Miller and
Wersal while having dinner, but denied ever receiving instructions from Durand
not to talk to Miller or Wersal.
Although Beneke impressed me as a basically credible witness, I do not credit his
denial in this instance. Miller's testimony is corroborated by the circumstances
that Durand had a strong antiunion bias, that he was aware of Miller's outspoken
union views, that Wersal was closely associated with Miller, and that both Miller
and Wersal were friendly with Beneke and often conversed with one another.
6. Jensen's interrogation of Miller
Miller testified that in the middle of September he was summoned to see Store
Manager Jensen, who brought up the question of "this union trouble" and asked
"how come these men want this union." After "quite a discussion" on the subject,
Jensen remarked that Miller "carried a lot weight . .. with the men," indicating
that "they would follow [his] example one way or another." Miller said, "for a
considerable length of time both you and Marv Hertaus [former head of the auto
service center] don't think I carry enough weight to be floor foreman, yet now
you think I carry enough weight to think that the men will go one way or the
other, depending on which way I go, on a union election." In the same conversation,
he told Jensen that he was "pretty sure" that he "would be voted, in" as union
steward, if the Union won the election. Jensen did not deny this conversation. I
credit Miller's testimony.
1734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. Jensen's offer to promote Miller
Miller had on numerous occasions asked his superiors (including Durand, the
latter's predecessor Hertaus, Thompkins, and Jensen) for the supervisory position
of floor foreman. He was told that if Respondent expanded its operations he "more
than likely would be floor foreman." In mid-September, Personnel Manager Quint
told Miller that since he "had been wanting to be a shop foreman" Store Man-
ager Jensen wanted to talk to him about "the plan" he had in mind. Miller testified
that when he thereafter saw Jensen, the latter offered him a position at the
"smaller" Shakopee store (about 25 miles from Bloomington), stating that he
"could more or less run" that shop with a part-time man. Miller asked for an
opportunity to investigate the job and think it over. Jensen agreed. Miller later
turned down the offer since "the type of work . . . done there was mostly the
type . . . that Wards advertises nationally for ...which is front end work,
muffler work, shock absorbers, tires, batteries, . brake work." Miller preferred
the mechanical work (such as tune-ups and carburetor overhauling), which he
chiefly did at Bloomington. He testified that he suspected Respondent had made
the offer to keep him "out of the election" at Bloomington store, since he had been
"consistently turned down before [for a supervisory job] because they said they
didn't think I was qualified."
Jensen's version of the interview is substantially consistent with Miller's. He
also testified that because of "a real serious deficiency" in operation at Shakopee,
he needed "a good mechanic" there; that after checking Miller's performance with
his assistant, Durand, he decided to offer the job to Miller; and that after Miller
turned down the offer he "promoted" his next best mechanic," Heller, to Shakopee.
Personnel Manager Quint testified that the day after Miller turned down Jensen's
offer, he asked him the reason for his action . Quint quoted Miller as saying
"I wasn't going to fall for that . . . I know you are trying to get me out of there."
Quint answered , "I don 't think that is the case at all. I think this was an honest
request made to you and we were having trouble over there and I would like to
see you take it."
8. Jensen 's offer to Wersal
Wersal testified that around the first week of September, he and Alm were called
into Jensen's office. According to Wersal, Jensen "just wanted to tell us we should
get on the right team" and "he could do everything the union could do for us"
and save them the expense of union dues and fees. Wersal testified that he was
again called into the office a week later; that Jensen asked him if he "thought . .
over" what Jensen had told him at the first meeting ; and that Jensen then said, "if
you get on the right team you have the qualifications to make floor foreman."
Jensen admitted talking to employees about the Union, but denied any coercive
remarks in those conversations , specifically denying that he told Wersal that "if
he got on the right ball team that he had the qualifications for floor foreman."
As hereafter found (infra, D, 2), Wersal was not averse to exaggerating and
frequently colored his testimony to conform it to his supposed interest. I do not
credit his testimony that Jensen made the coercive remarks about his opportunity
to qualify as foreman . I note, among other things, that his prehearing affidavit
makes no reference to such statement.
9. Conclusions as to alleged interference , restraint , and coercion
a. I find that Respondent , through its officials and supervisors , engaged in inter-
ference, restraint, and coercion, in violation of Section 8(a)(1) of the Act, by the
following acts and conduct: 6
6In reaching my conclusions , I have evaluated all acts and statements in the light of
Respondent's total conduct in the organizational campaign, its hostility to unionization of
the service station, the rank and role of the individuals engaging in the conduct, the
continuous nature of the acts involved , and the reasonably inhibitory effect of the state-
ments and acts upon the employees to whom they were directed. Although the complaint
did not specifically allege certain conduct herein found violative of Section 8(a)(1), I
did not deem myself foreclosed from passing thereon, in view of the similarity and close
relationship of the violation found to others alleged in the complaint and the fact that
Respondent fully litigated the issue See, Granada Mills , Inc , 143 NLRB 957, 958, foot-
note 1 ; Monroe Feed Store, 112 NLRB 1336 ; Eagle-Picher Mining and Smelting Company
v. N.L.R.B., 119 F.2d 903, 910 (C A. 8). Cf. Frito Company, Western Division v. N.L R.B ,
330 F.2d 458 (C.A. 9).
MONTGOMERY WARD & CO., INC . 1735
(i) Engaging in surveillance of the August 26 union meeting at the Southtown
Bowling Alley (supra, B, 1). Even accepting Auto Service Merchandiser Durand's
testimony that he had arranged to meet with his assistants in the same building
to discuss an unsatisfactory operating statement , Respondent supplied no credible
explanation for selecting precisely the same date, time, and place as the union
meeting, of which it admittedly had several days' advance knowledge. Indeed, one
of Respondent's officials (Jakubic) conceded to an employee that management met
at the bowling alley in order to observe employees attending the union meeting.
(ii) Auto Service Manager Thompkins ' threatening statement in the course of
his antiunion remarks at the September Service Club meeting that "If you think
it is tough around here without a union . . . it can get tougher with a union"
(supra, B, 3).
(iii) Durand 's statement at the same meeting that he could be "a nice guy" or
not. In the context of his other antiunion remarks, this statement constituted a
veiled threat of reprisal for union adherence.
(iv) Durand's request at that same meeting for "a show of hands" "for Mont-
gomery Wards" ( supra, B, 3). His demand for public disclosure of each employee's
sympathies, particularly in the light of his contemporaneous antiunion talk, absence
of any valid reason for the open "vote," and absence of any assurance against
reprisals , constituted unlawful interference and coercion . See Frank Sullivan and
Company, 133 NLRB 726, 727; Western Reserve Telephone Company, 138 NLRB
755, footnote 2, enfd. 323 F.2d 564 (C.A. 6).
(v) Thompkins' extensive and systematic interrogations in the coffeeshop, par-
ticularly those coupled with coercive remarks and overtones. His statement to
Wersal, "I hate to see you get hurt," constituted a threat of reprisal if the Union
came into the store . His identifying and listing of employees for the "Union,"
as opposed to those for "Wards" tended to convey the impression of surveillance
of union activity . His questioning of Reich ( at a later meeting, in the presence of
Respondent's Labor Relations Manager Brousard) as to how he (Reich) would
vote if the election were held right then, put Reich on the spot so as to force
Reich to give an equivocal response (supra, B, 4).
(vi) Assistant Manager Beneke 's statement to Miller that his superior, Durand,
had instructed him not to talk to Miller and Wersal because they "are supposed
to feel as outsiders." (Supra, B, 5, and 6.)
(vii) Store Manager Jensen 's interrogation of Miller as to why "these men want
this union" and his intimation that the men would follow his leadership as regards
the union issue (supra, B, 6).
(viii) Jensen's offer to promote Miller to a supervisory position at Shakopee
(supra, B, 7) which, in context of Respondent's earlier refusals to promote him
to such a position, Jensen's intimation (shortly before the offer) that the men
would follow his (Miller's) position on the union issue, and Miller's known pro-
union sentiments, may reasonably be construed as an attempt to allure or induce
a leading union advocate to transfer out of the bargaining unit in order to weaken
the Union's position in the forthcoming election.
b. I find that the following conduct did not constitute unlawful interference,
restraint , and coercion:
(i) Jakubic's presence at Jerry's Tavern shortly before the Union's November 5
election (supra, B, 2). Although Jakubic had advance knowledge of the union
meeting, the record-particularly the circumstance that Jakubic customarily stopped
there for beer after work and the fact that he apparently stayed there no longer
than usual-does not warrant the inference that he engaged in surveillance or went
there for that purpose.
(ii) Labor Relations Manager Brousard 's statement to three employees that they
did not need a union and that the men should settle their own problems (supra,
B, 4), which constituted legitimate persuasion and argument.
(iii) Beneke 's statement to Miller and Wersal that if the Union got in, several
employees would be "going" or "leaving." (Supi a, B, 5, a ) In view of all the
surrounding circumstances-including the friendly relationship between the men,
the fact that Beneke was a relatively minor supervisor, the somewhat ambiguous
language used by Beneke about the men "leaving ," the common knowledge that
several antiunion employees had stated they would quit or transfer if the Union
came in , and the fact that Miller himself understood that Beneke "made kind of
a joke of it"-I conclude that Beneke 's remarks cannot reasonably be construed as
threats of discharge if the Union came in the plant.
1736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(iv) Jensen's alleged statement to Wersal about his opportunity to qualify as
foreman if he got on the right team-which was not made (supra, B, 8).
C. The discharge of Alver Bratsch
1. The facts
Bratsch was hired as a tire mounter on June 4, 1965, and signed a union card
on June 27, 1965. As noted (supra, B, 4), he was one of the three employees for
whom Auto Service Manager Thompkins arranged a meeting in October with
Respondent's labor relations manager, Brousard, after ascertaining in his (Thomp-
kins') union discussions with the three that they did not "seem too happy" and
"there was something bothering" them. Bratsch disclosed his prounion sympathies
to Brousard when he questioned the latter's statements that the employees needed
no union , that it could do nothing for them, and that it would create more prob-
lems at the store. The record indicates that Auto Service Merchandiser Durand
knew that Bratsch was a union man. Thus on one occasion Durand told the per-
sonnel manager, Quint (in Bratsch's hearing), "There's another man that's on the
wrong ball team." 7 On another occasion he told Bratsch to tell his "friend," Joe
Prifrel (the Union's business agent), to put his (Durand's) name on the next union
brochure so that he (Durand) could receive its Furthermore, as found (supra,
B, 4), in discussing with Miller the outcome of the Board election and then pre-
dicting a 16-to-5 vote against the Union, Thompkins listed Bratsch as one of the
five prounion voters.
Bratsch was discharged by Quint on December 1, his timecard being already
removed from the rack when he reported to work around noon. At Thompkins'
request, he went to see Personnel Manager Quint, who informed him that he was
"taken off the payroll" because the Company had been served with a garnishment
on his wages. Quint handed him a piece of paper setting forth the name of the
creditor's attorney, his telephone number, and amount of the claim ($350), and
told him to call the attorney to "tell him he caused [him] to lose [his] job."
Bratsch replied that he already had seen his lawyer regarding it, that he didn't
think (he] owed this money," that he "was fighting it," and that he "would have
it settled shortly." Quint said, "they [the Company] didn't like to have trouble
like this in their store, garnishments, because it caused them a lot of work, caused
'them about a half day's work in their office with their secretary . . . They had a
perfect right to discharge [him] for this." Before his leaving, Bratsch explained
that the garnishment was based on a claim for unpaid rent on a 6-month lease of
an apartment (signed in his name) which he had shared with another couple
earlier in the year.
Bratsch returned about an hour later and told Quint that his lawyer requested
that he not be discharged "because this claim was being disputed." Quint said he
"didn't have to listen to this lawyer, said [he] was through and that was it." Before
ending the conversation, Bratsch asked Quint if he should appear at the Federal
building to give a statement "on what has been happening at Montgomery Wards
and my job." Quint replied he "didn't care what [he] did."
The claim against Bratsch was subsequently settled for $135. When Bratsch
returned to the store with the garnishment released (2 days after his discharge)
and claimed his wages, Quint "seemed to be surprised" that Bratsch was able to
settle the claim so quickly. Quint remarked that Bratsch "was able-bodied and
could get . . . work."
The foregoing findings are based on the credited testimony of Bratsch. Quint's
version of the discharge interview differs mainly in that Quint insisted he did not
fire Bratsch until first ascertaining the facts underlying the garnishment. Quint
denied that Bratsch told him he had retained an attorney the day before he was
fired (November 30) and that Bratsch was contesting the amount of money
involved. According to Quint, he fired Bratsch after determining that he "had
walked out" on a lease in "flagrant violation of his personal responsibilities."
I do not credit Quint's version of the events insofar as inconsistent with Bratsch's.
I do not believe that he first asked Bratsch "what the garnishment is for," that
Bratsch failed to mention he had a lawyer, and that it was he (Quint) who advised
Bratsch to retain one. Bratsch's attorney, Soukup, a credible witness, fully cor-
roborated Bratsch's testimony that he had been retained on November 30, the day
7 Based on credited testimony of Bratsch
8 Durand did not deny making this statement.
MONTGOMERY WARD & CO., INC. 1737
before the discharge interview. Indeed, Soukup discussed the matter with the
creditor's attorney on that same day (November 30) and advised Bratsch (as the
latter testified) to return to Respondent to inform it that the matter was being
handled by him. Under the circumstances, it is hard to believe that Bratsch would
have failed to report these matters to Quint in the discharge interview. According
to Quint, Bratsch did not mention his retention of an attorney even when he
returned the second time (on December 1) to urge Quint to reconsider his action,
pleading that "he needed a job." Quint's version is incredible.
2. Conclusions
The question whether Respondent discriminatorily discharged Bratsch presents
only a question of fact, the key issue being Respondent's intent or motivation. How-
ever, "intent is subjective" and can usually be established only by circumstantial
evidence. N.L.R.B. v. Melrose Processing Co., 351 F.2d 693, 698 (C.A. 8). Indeed,
"direct evidence of a purpose to violate a statute is rarely obtainable," N.L.R B. v.
Intl. Union of Operating Engineers, Hoisting and Portable Local No. 101, 216 F.2d
161, 164 (C.A. 8).
The circumstances surrounding Bratsch's discharge amply support General Coun-
sel's contention that it was discriminatorily motivated. Respondent strongly opposed
the Union's organizational drive. It sought by illegal as well as legal means, to
block unionization of its service station center. The coercive measures to which
it resorted included interrogations concerning union sympathies, threats of reprisals
for engaging in union activities, holding out benefits in order to dissuade such
activities, directing a supervisor to treat prounion employees as "strangers," and
engaging in surveillance of a union meeting. Respondent was aware of Bratsch's
union sympathies. He made his views known to Auto Service Manager Thompkins,
whose opposition to the Union was vociferous, and to Respondent's labor relations
manager. Thompkins ' superior, Durand-another antiunion official-regarded him
as being "on the wrong ball team" and so told Personnel Manager Quint. The
summary character of Bratsch's discharge, without investigation of the circum-
stances leading to the garnishment, also constitutes evidence of discriminatory
motivation. So does the inadequacy-in some respects falsity-of Respondent's
explanations for the discharge.
I have already commented on Quint 's untruthful testimony that he inquired into,
the circumstances of the creditor's claim against Bratsch before determining to
fire him. The record establishes that a company discharge for a single garnishment
was most unusual. (Bratsch never had a prior garnishment against him ) Quint
and Store Manager Jensen testified that the manager of each store had complete
discretion with respect to discharge for garnishments. Quint stated, "There is no
policy on the number of garnishments that a person may have . . . . It could be
one, it could be three, it could be five, there is no number, in each case it is
handled from my office on its merit." He also stated that individual hardship was
a prime factor in making the decision whether to discharge a garnishee. He could
not, however, name any specific individual, discharged before Bratsch's termina-
tion, after only a single garnishment.9 Jensen recalled only on such discharge, at
another store (Clinton, Iowa) in 1957.10 Furthermore, Quint admitted he did not
ask Bratsch whether the claim had been reduced to judgment and that he knew
garnishment in Minnesota is permitted of a claim before determination on the
merits.
I conclude that Respondent seized upon the garnishment against Bratsch as a
pretext to conceal its true reason for his discharge, namely to discourage unioniza-
tion of its service station employees and thereby defeat the Union at its store.ii
O Quint identified one employee as having been discharged after one garnishment, but
that discharge occurred 3 or 4 weeks before the hearing.
io Prifrel , the Union 's business representative who deals with Respondent at its unionized,
store in St . Paul, Minnesota ( and other areas ), testified that he could recall only three
or four discharge -grievance proceedings on account of garnishments during the 11 years
the St. Paul store had been under contract with the Union, and that in all cases the em-
ployee had at least three garnishments. Alm, a Southtown store employee, testified that
the prior store manager (Stuckey) told him that company policy was to discharge a man
after receipt of the third garnishment . Respondent did not produce the company manual
describing Respondent ' s garnishment-discharge policy.
li It will be recalled that the Union's objections to the November 5 election were still
pending, and that the possibility that a new election would be directed was by no means.
remote when Bratsch was discharged on December 1.
1738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The alleged constructive discharges
1. David S . Miller
Miller was hired on October 26, 1964 , by then auto service manager, Marvin
Hertaus. Miller testified he was able to convince Hertaus that the garage "could
make more money" by expanding its mechanical operations with Miller specializing
in these operations , i.e., tune-ups , rebuilding and overhauling carburetors, and
electrical work. Until then the auto service department 's services had consisted of
the usual nationally advertised work performance at Respondent 's other stores,
such as front -end jobs, brake work, and installation of mufflers , tires, and batteries.
According to Miller, he performed more and more of the mechanical work as that
work increased so that by the summer of 1965 he spent little time on anything else.
Respondent concedes that Miller was a "very good " mechanic.
Durant succeeded to Hertaus ' position as head of the auto service center in
June. Miller testified that around the middle of September there was a noticeable
change in his assignments to more routine muffler, lubrication, and oil change work.
Miller regarded those jobs as "disagreeable " and beneath his skill. According to
Miller, the less desirable work lasted about 2 weeks , then "changed to the good"
(after his complaining about the new assignments to Store Manager Jensen), and
then "started changing again" to "bad ," continuing "more or less" until the end of
his employment on November 6. Miller, however , qualified his estimate by stating
that even during the "questionable period" (October 1-November 6), "it might
be good for 3 or 4 days and might turn around and be bad for 3 or 4 days or 2
days. It was a changeable thing. The way it looked to me it was the mood Mr.
Durand was in."
Miller gave varying estimates of the time he spent on "desirable " and undesirable
work. At one point he stated that his carburetor ( desirable ) work-on which he
had spent 75 to 80 percent of his time before the changes were effected-was
reduced to 40 or 50 percent in "the questionable period"; his muffler work during
the same questionable period increased 25 percent , and his grease work went up
30 or 35 percent . At another point he estimated that after the change in assign-
ments he spent about 50 percent on "disagreeable " work ( mufflers, grease jobs, oil
changes).
In support of his contentions , Miller pointed to several mechanical jobs that he
felt would normally have been given him (rather than to other employees) had
Respondent honored Miller 's arrangement with Hertaus. These included a tune-up
job ordered by a Ward's tire salesman , an engine job on a 1961 Oldsmobile, a
similar job on a 1961 or 1962 Rambler, and an engine job on a gravel truck.
Miller also testified that in the middle of September , Durand told him that he was
thereafter "going to get a lot of" muffler work, dubbing him "muffler king." Wersal
quoted Durand as telling him shortly afterward (end of September or beginning of
October ) that he was "either going to make him I Miller I muffler king or break
him." Alm quoted Assistant Manager Beneke as saying that "he would make it
so tough for Miller and Wersal that they would . . . have to quit."
Miller testified that on his last workday , Saturday , November 6, he worked on
a grease job or oil change, "possibly" a muffler or tailpipe , and a water pump. (He
considered only the latter as "desirable" work. ) He further testified that on return-
ing from lunch around 1 p .m. he told Assistant Manager Jakubic ( Durand was out)
that he was quitting . Miller said to him, "I was fed up , I had seen the handwriting
on the wall." At the hearing, Miller explained that the "handwriting on the wall"
remark was prompted by the fact he was denied the opportunity to complete an
engine rebuilding job (on a pickup truck) on Saturday which he had started earlier
in the week . 12 Miller testified:
As far as I was concerned , the pickup engine job was mine Saturday morning.
I didn't get it. From past experience I figured that this was it . We had not
"According to Miller, earlier in the week , a customer ( who happened to be a Ward's
salesman ) asked him to install an engine in his pickup truck. After telling him to check
with Thompkins , he was authorized to do the job and remove the engine. After installing
the engine , he discovered that there was "val%e trouble" and told the customer to return
with the truck to rectify this Duller was off the next day and Wersal handled this job.
When he returned on Saturday , the engine was still in the garage and he "figured" he
mould continue the job because he started it. However , neither he nor Wersal were as-
signed to it.
MONTGOMERY WARD & CO., INC. 1739
won the election Joe [Prifrel, the union representative] was not going to be
in, and I figured, I had stepped on a few toes in the past couple of months, I
figured, well, I was done, dead is what I figured, I figured it would just be a
matter of time I would be out one way or another.
Miller testified that earlier (around the middle of September), he advised Store
Manager Jensen the circumstances under which he would "quit" his job. Jensen
,at that time remarked, "I hear you are going to quit the day after the election."
Miller answered "you got it partly right, but you don't have all your information
I will quit the day after the election or at any time when pressure is brought
to bear upon me." When Jensen wanted to know what he meant by "pressure," he
told him "about the muffler king bit." 13
As hereafter noted, Wersal quit around the same time that morning. Although
he denied knowing of Wersal's intention to quit that day, Miller stated he knew
Wersal "was thinking about it." He also admitted telling Wersal earlier that morn-
ing, "I can see the handwriting on the wall . . . we are finished" because they were
not allowed to complete the engine job he started on November 3 or 4. Miller
acknowledged that about a month earlier he had remarked to Beneke or to a
mechanic that "if one of us [Miller or Wersal] got fired, the other one was going
to leave."
Jakubic, who checked out both Miller's and Wersal's tool boxes, testified that,
prior to quitting, Miller asked him if Wersal had already quit. When he answered
"yes," Miller said, "If he quits, I quit, too."
The record establishes that work in the shop is normally assigned in the order
in which it is received from customers, with tire-mounting orders separated from
others and certain jobs such as front-end alignments done by appointment. Ordinar-
ily, the next available mechanic receives the order on "top of the pile" unless
unqualified to do the work, in which case he receives another job. Employees are
expected to produce sufficient work "to double" their wages (i e., labor charges to
-customers during a given period are expected to be twice the wages earned in that
period).14 However, this company policy is only "something to shoot for." No one
lost wages or was disciplined or fired for failing to meet it. It is admittedly easier
,to double wages on higher-priced mechanical jobs such as tune-ups and brakes than
on lubrication, oil changes, and muffler work.
Durand testified that after he succeeded to Hertaus' job as head of the garage,
he decided to discontinue some of the mechanical work introduced by Hertaus and
specialized in by Miller because it was not profitable and because it was against
company policy. This included such jobs as rebuilding carburetors, starters, and
generators (as distinguished from installing rebuilt items). He stated that after he
inaugurated the changes in August, Miller complained, stating that he was "more
or less" hired to do carburetor and tune-up work, and contending that such work
"was real profitable." Miller conceded that Durand began to change his predeces-
sor's policy in August, that he (Miller) "didn't like it," and that he questioned
management's wisdom as to certain changes. In Miller's view, Hertaus, a Scotch-
man, was frugal and he (Miller) was able to sell him the idea that by recondition-
ing engines the Company could "profit off the engine plus the profit of putting it
in." It is clear from the record that Miller became unhappy and resentful as he
saw Durand "slowly getting away from this." Miller testified that he had "several
discussions [with Durand] about it"; and that "we definitely disagreed on the work
that was being done, the type of it and how it was being done." He went on to say
that he felt, "If this continued long enough, pretty soon we are out of the carburetor
business and we are out of the engine business. As Mr. Hertaus agreed . . . when
we are out of that business, I am back to being what I call a flunky, strictly mufflers,
tail pipes, grease jobs and shock absorbers." When asked if his work policy dis-
agreement with Durand was not "really the reason" why he "chose to leave,"
Miller replied, "No, I wouldn't say that was the only reason. That is a hard thing
to answer in just yes or no." When pressed further, he said, "I think I answered
11 Miller testified that in the same conversation Jensen mentioned lie had heard that
Miller was distributing union cards on the sales floor, which Miller denied. According to
Miller, Jensen then told him that he could "fire" him for saying he was going to quit,
to which Miller replied that if that was ground for dismissal he "would have to fire
every man in the store because at one time or another everybody says they are going
to quit."
11 Garage employees were paid on an hourly basis.
1740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that question," adding, "I could see it on the long-term basis, yes, not right now,
not at this particular moment . . . If it was to continue this way, pretty soon I
am out of the carburetor business."
Durand conceded that he had referred to Miller as "muffler king" stating: "I was
frankly getting a little irritated with the way Dave was questioning management
policies and the way myself or my superiors ran the shop, and it was more in a
needling sense than anything else." He admitted knowing that Miller disliked
muffler work, but denied assigning him more than his proportion.
Records produced by Respondent show the following comparison of work done
by Miller and the two mechanics (Reich and Alm) who performed the highest
number of tune-ups in September and October:
Miller Reich Alm
Tune-ups
September ----------------------------------------------- 25 9 S
October--------------------------------------------------- 38 9 8
Carbui etors
September ------------------------------------------------ 13 1
October--------------------------------------------------- 9 --------------
Mufficis
September------------------------------------------------ 6 18 2
October--------------------------------------------------- 4 18 12
Lubrications
September------------------------------------------------ 9 14 5
October--------------------------------------------------- 18 11 10
Oil Changes
September------------------------------------------------ 10 16 4
October-------------------------------------------------- 15 11 13
NOTE -The data for October cover a full month's operations, those for September appear to cover the
whole month (Septembei 1-30) for Reich and Alm and September 1-25 for Miller All mechanics (including
Miller) performed other repair work and installed other products (e g batteiies) Since Miller's compaii-
sons related largely to the operations described above, it is unnecessary to burden this Decision with other
comparisons
Respondent's records also show that prior to quitting on Saturday morning,
November 6, Miller installed a carburetor and a water pump, and did a tune-up.
He also had a grease and oil change, and one battery and one electrical system
adjustment.
2. Melvin M. Wersal
Wersal was hired on May 17, 1965, by Marvin Hertaus. Wersal testified that
Hertaus told him that he needed him "specifically for brakes" because "that was
his weak point and he wanted to build them up." He further testified that Hertaus
promised him he could take time off in the hunting season and would receive
raises every 3 months until he attained the top mechanic's rate. Wersal started at
$2.35 an hour, received an increase to $2.45 on June 3, and a "merit" increase
to $2.60 on August 19.
According to Wersal, in September he went to see Durand (Hertaus' successor as
head of the service center or garage) about a 2-week leave of absence in Novem-
ber-December to attend a General Motors school for brake mechanics which he had
been attending "almost" every year before hired by Respondent. Durand denied
his request, saying that he did not "run a Sunday School." Wersal then asked if he
was going to get time off to go hunting in the November deer hunting season.
Durand answered, "No." Wersal also asked if he would get the wage raises prom-
ised him by Hertaus and Durand again said, "No." Wersal admitted that other
employees with greater seniority had also requested time off for hunting; and that
since he received a wage raise on August 19, he did not really expect another until
November.
Durand indicated he did not consider himself bound by Hertaus' promises to,
Wersal if he "felt it would hurt the shop." He stated that he had "no objection,
whatsoever" to Wersal's attending brake school in the slow season, but that
November-December was the beginning of the busy winter season. Assistant Man-
MONTGOMERY WARD & CO., INC. 1741
.ager Beneke testified that in discussing the subject of hunting with Wersal, the latter
told him, "Well, I am going to go deer-hunting if I get time off or not, either
wvay :' 15
As to his assignments, Wersal testified that when hired he "spent the biggest
share of the time on brakes"; and that he received priority for those jobs until the
middle of October, spending all but 2 or 3 of his 40 hours thereon. According to
Wersal, after the "change" in his assignments , mechanics Alm, Reich, and Benson
received more brake jobs, while he received more lubrication, oil changes, and
muffler and other "onerous" work. He asserted that he was then assigned brake
work only "when there was either too many for them to handle or if a customer"
.specifically asked for Wersal, or the other mechanics "had trouble" with the job.
He estimated that he was assigned only two or three brake jobs in the last 2 or 3 weeks
of his employment, although he may have assisted "correcting some mistakes or
helping someone out of a jam" on other jobs for which he would normally not be
-credited on company records. He admitted that two of the three mechanics (Alm
and Reich) who allegedly were receiving more brake work at his (Wersal's)
expense, were union adherents and, as far as he knew, were "the two fellows that
started the [ organizational ] ball rolling." He also admitted that these mechanics
had always done brake work, but claimed that they, unlike himself, were not "brake
specialists." (Wersal acknowledged that prior to being hired by Respondent in May,
he had worked for 31/a years at gasoline stations where he had lubrication, oil
,changes, and muffler work, in addition to brake jobs.)
Wersal testified that on Saturday morning, November 6 (the day after the Board
,election), while working on a brake job (assigned at the specific request of a cus-
tomer), Durand "slapped" him on the back and asked, "how does it feel to be a
sorry loser?" Durand asked Wersal to see him in the office and Wersal replied, "I
want to see you too when I am through with this job." When Wersal went to see
Durand at around 12 noon, he asked Durand if he was going to get his time off
for hunting; Durand said, "No." He then asked if he would get the raises promised
him when he was hired; Durand replied, "No, we will go according to the con-
tract." 1, Thereupon, Wersal said "Well, I am all done, then. I can see the hand-
,writing on the wall, it is going to happen." Durand and Jakubic then inspected
Wersal's toolbox before the latter left the garage.17 Asked at the hearing whether
he quit because he was denied time off for hunting and wage raises, Wersal agreed,
adding "and the treatment I was getting" on job assignments in the 2 preceding
weeks He conceded, however, that he had not complained to anyone in manage-
ment regarding his assignments . Later in his testimony he claimed that after mid-
-October, he told an unidentified individual (not necessarily a company representa-
tive) that he "would quit if this [work assignment] kept up."
Durand testified that he rejected Wersal's request for 5 days' hunting leave
because several other employees had asked for such leave, that Wersal (who had
less than 6 months' employment) was not entitled to any leave, and, in any event,
that he told him he "would see what [he] could do." As to the wage raise, he
testified that he found nothing in Wersal's personnel folder to support Wersal's
claim that he had a special arrangement with Hertaus. Durand testified that he told
Wersal he was not entitled to a raise under company policy (one raise after 3
months and another 6 months later) since he had already received one in August,
and that Wersal thereupon said he was leaving. Wersal did not "indicate . . . in
any manner that he was dissatisfied with the type of work that he was doing."
According to Durand, when he instructed Pakubic "to check out" Wersal's tool-
box, Jakubic told him that Miller was also quitting, and he therefore requested
Jakubic to "check them both out."
-' Wersal did not specifically deny Beneke 's testimony , which I credit . As previously
noted, Beneke impressed me as a basically honest witness, whereas Wersal was a witness
given to exaggeration . Wersal's testimony is in some respects inconsistent with his
prehearing affidavit, for example, respecting his wage request to Store Manager Jensen,
I do not credit Wersal's disputed testimony that Durand ascribed his refusal to grant
hunting leave to his ( Wersal ' s) refusal to play "ball " with him. ( Wersal failed to attribute
this statement to Durand on direct examination , first mentioning it on redirect.)
11 Wersal understood Durand to refer to the union contract applicable at St. Paul call-
ing for a wage raise after 90 days and then "9 months for the next one."
17 According to Wersal, his and Miller's toolboxes "were being checked at the same
time." He testified however, that he did not know until that time that Miller had quit also.
1742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Respondent's records, Wersal's work compares as follows with that
of the three other mechanics who, he claims , increasingly took over his brake
work:
Wersal Reich Alm Benson
Brake iehnmgs
September--------------------------------------- 12 11 7 8
October-------------------------------------------- 15 5 2 6
Lubrications
September----------------------------------------- 7 14 5 4
October-------------------------------------------- 10 11 10 5
Oil Changes
September---------------------------------------- 8 16 4 6
October------------------------------------------ 11 11 13 7
Mufflers
September----------------------------------------- 18 18 2 12
October------------------------------------------- 16 18 12 8
Respondent's records also show that Wersal worked on a 4- or 41/2-hour brake,
job on November 2, and a 3- or 31/2-hour brake job on November 5.18
3. Conclusions
(a) An employer "constructively" discharges an employee in violation of the
Act where, for discriminatory reasons, he makes the employee's conditions of work
so intolerable or undesirable that he is thereby forced to quit his job. See, Ritchie
Manufacturing Company, 147 NLRB 1257, 1268-69; The Cross Company, 143
NLRB 1005, 1007; Leggett's Department Store, 137 NLRB 403, 416. In each case,
"the pivotal factor is motive." N.L.R.B. v. Lipman Brothers, Inc., 355 F.2d 15, 20-
(C.A. 1). General Counsel in his brief concedes that "[t]his case does not involve
the more obvious and extreme forms of harassment found in many Board cases
upholding a constructive discharge," but contends that "[n]evertheless, Respondent's
intent here to cause the employees to quit and its motive for doing so-a belief
that they were strong union adherents-is just as apparent as in the more extreme
cases." I do not agree.
I have no doubt that, in view of Respondent's union animus and Wersal's and
Miller's strong prounion sympathies, Respondent more than welcomed the employ-
ees' decision to quit on November 6, the day after the election. However, based on
the totality of the evidence , I am not persuaded that the employees ' departure-
resulted from Respondent 's alleged discriminatory treatment.
(b) As to Wersal, his own testimony indicates that he was more intent on leav-
ing to go deer hunting than staying with Respondent under reasonably imposed
working conditions. Indeed, he so informed Assistant Manager Beneke when he
said to him, "I am going to go deer-hunting if I get time off or not, either way."
If, as Wersal claimed, Respondent harassed him by assigning him to such "undesir-
able" jobs as greasing, changing oil, and installing mufflers in October, why is it,
by Wersal's own admission, that he never complained about it to management?'
Actually, the evidence indicates that all mechanics performed those so-called dis-
agreeable jobs-some to a greater extent than Wersal; and that as many as 15 of
the 38 brake relining jobs in October were done by Wersal, the remaining 23 being-
distributed among 8 other mechanics.19 Nor was there such significant fluctuation
19 Wersal testified that between November 20 and December 4, he telephoned Personnel
Manager Quint for a job in response to a newspaper ad for a mechanic's job. According
to Wersal, Quint denied his application
19 In making the foregoing finding, I have not overlooked General Counsel's contention,
that Respondent's records (produced at the hearing) do not fully and completely reflect
the assignments to Wersal (and to the other alleged discriminatee, Miller) because (1) the
work credited to them could reflect work transferred by other mechanics unable to handle-
it; and (2) even when their names appear on work orders, this does not "necessarily"
establish that they performed the work, since the office girl sometimes printed or signed a
mechanic's name. As to (2), the credible evidence shows that instances in which mechanics-
themselves did not sign the work orders were rare since they were expected to and nor--
MONTGOMERY WARD & CO., INC. 1743
in Wersal 's assignments from September (Wersal did not claim discriminatory
treatment in that month) to October (the discriminatory period) from which dis-
criminatory intent is readily inferable. Furthermore, if, as Wersal contends, the
determining factor in Respondent' s assignments was union adherence, why did
Respondent allegedly favor two other leading union adherents (Alm and Reich)
at Wersal's expense? And why did the claimed discriminatory treatment start in,
the middle of October-long after union activity commenced and at least 1 month
after the alleged discrimination against Miller began? (Wersal testified that prior
to the alleged discrimination period in October, Manager Thompkins "many times,
would go through the pile" of work orders and "find [him] a brake job" even,
though that job was not next in line. ) In addition, assuming that Manager Durand,
as Wersal contends, broke the promises Hertaus (the former manager) had made
when he was hired (i.e., that he would have top priority in brake work, time off
for hunting in November, and receive faster and higher raises than other mechan-
ics), Respondent's breach of the agreement does not, in itself, establish an unfair
labor practice.
(c) As to Miller, I find that his dominant motive for quitting was disappoint-
ment in the new manager's (Durand's) departure from his predecessor's (Hertaus')
policy regarding mechanical work (Miller's specialty) and his (Miller's) feeling of
frustration because the Union lost the election. As Miller admitted, he questioned
the wisdom of Durand's policy change, fearing, as he stated, that if Durand's new
policy "continued long enough," Respondent would be out of the carburetor and
engine business and he (Miller) would be relegated to being a mere "flunky"-
working "strictly" on mufflers, tailpipes, greasing, and other jobs which he regarded
as undesirable and as beneath his skills. Leaving a job under such circumstances
does not amount to a constructive discharge in violation of the Act. The right of
an employer to manage his business includes the right to assign and distribute work
among his workmen. "The protection afforded [an employee] by the Act does not
include the right to prescribe [his] own work assignments." "It is only if an onerous
assignment is made for the purpose of encouraging or discouraging membership
in a labor organization that such action runs afoul of Section 8(a) (3) of the Act."
Sears Roebuck & Company, 110 NLRB 1162, 1175.
Furthermore, the record indicates that despite Durand's curtailment of mechan-
ical work, Miller continued to perform a disproportionately larger portion of such
work in the shop. Thus, he had all nine carburetor overhaul jobs in the shop during
October. He had over half of the tune ups. (Miller had 38 such jobs; 33 others
were divided among 10 other mechanics.) Although dubbed "muffler king," he had
only four muffler jobs in the entire month. And Miller did a considerable amount of
mechanical work (a tune up, and a water pump and carburetor installation) on the
morning he quit. It is clear, therefore, that Miller's work record in a period of
mechanical work reduction fails to support a finding of discriminatory work assign-
ments. The evidence is insufficient to establish that Respondent had made his con-
ditions of work so intolerable as to force him to quit his job. Furthermore, it should
be noted that, as in the case of Wersal, the two employees whose "desirable"
mechanical work allegedly increased at Miller's expense (Reich and Alm) were
active unionists.20
In my view, the "handwriting on the wall" which Miller claims to have seen
when he quit did not spell disparate treatment based on union adherence. I find that
he left his employment because he did not like Durand's business methods and
mally signed the documents ; the office girls would sign the mechanic's name only after
checking on the matter. As to (1) the significant question is not why the alleged dis-
criminatees were given "undesirable" work but that they were given such work. In any
event, the pattern of assignments, shown by company records, is corroborated by other
credible evidence. Furthermore, my conclusions herein would be the same even if I totally
ignored the company records challenged by General Counsel.
"Miller also indicated (as did Wersal) that assignments to lower-priced "flunky" jobs
affected his ability to "double" his wages and impaired his bargaining position for future
wage increases. The short answer to this contention is that although Respondent expected
its employees to produce enough income (the labor charges to customers were expected_
to be twice the hourly rates to employees), failure to meet this objective did not subject
employees to discipline ; an employer is under no obligation to place his employees in a
better bargaining position ; and Miller was at a lesser disadvantage than other mechanics
performing even more of the low-priced operations (lubrications, oil changes, muffler
work, etc.).
1744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
policy and because, as he put it (as a partial reason for his leaving), "we had not
won the election" the day before. That Miller may have entertained suspicion of
Respondent's intent and future course of action, in the face of the Union's election
defeat, is not enough. The credible evidence does not establish a case of unlawful
constructive discharge. Cf. N.L.R.B. v. Mays, Inc., 356 F.2d 693 (C.A. 2).
(d) This is not to say that the record is devoid of evidence tending to support
General Counsel's case. I have already touched on Respondent's general union
animus. Furthermore, as to Miller, the timing of Respondent's offer to promote
and transfer him to another store (out of the bargaining unit) suggests a strong
ulterior motive. So do other circumstances including, Automotive Service Manager
Durand's admitted needling of Miller as "muffler king" and his statements to Miller
and others that he was "going to get a lot of" muffler work.21 The totality of the
evidence does not, however, persuade me that Miller and Wersal left because of
unbearable and intolerable, discriminatory work assignments. Giving appropriate
weight to the countervailing evidence tending to demonstrate discriminatory
employer intent and conduct, I conclude that the preponderance of the credible
evidence fails to support the allegation in the complaint that Respondent construc-
tively discharged Miller and Wersal by repeatedly assigning them to disagreeable
work and work below their respective skills, in order to discourage union activity,
in violation of Section 8(a) (3) and (1) of the Act.
E. The refusal to recognize the Union
By August 26, the Union had obtained authorization cards from 12 of Respond-
ent's 21 service station employees. The next day, August 27, it requested recog-
nition as the majority representative of those employees. On August 30, the Union
filed a petition for an election (Case 18-RC-6558). After a hearing on the petition,
the Regional Director conducted an election which the Union lost by a 10-to-10
tie vote.
1. The appropriate unit
The Regional Director found the following unit appropriate for collective bar-
gaining in his decision and direction of election, issued October 8:
All automobile service station employees of the Employer's Southtown store
at Bloomington, Minnesota; excluding salesmen, shipping and receiving
employees, parts department employees, office clerical employees, professional
employees, guards, and supervisors as defined in the Act.
Under Section 102.27(b) of the Board's Rules and Regulations, Series 8, as
amended, Respondent had the right to file a request for review of the Regional
Director's unit determination. Respondent, did not do so. Accordingly, Section
102.67(f) of the Board's Rules now precludes it from relitigating that issue. See
Rish Equipment Company, 150 NLRB 1185, 1194; Thrifty Supply Company, 153
NLRB 370.22
2. The propriety of the Union's recognition request
In its letter to Respondent, dated August 27, the Union wrote:
Due to the fact that we have the majority of the Application Cards from the
employees of the Service Station at Montgomery Ward Southtown Retail
Store we are hereby requesting recognition as the Bargaining Agent for this
unit.
"As found, however, the record does not support a finding that Respondent discrimina-
torily assigned him to such work and forced him to quit his job. In the light of the entire
record, including Durand's union animus and his knowledge that Miller disliked muffler
work, I find that Durand 's statements nevertheless constituted threats of reprisal for union
activities , in violation of Section 8(a) (1) of the Act. Cf. Vacuum Plating Corporation,
155 NLRB 820 ( 60 NLRB 1401 ) ; Crown Tar and Chemical Workers, Inc., 154 NLRB
562 The fact that the complaint did not specifically allege this conduct as an independent
8(a) (1) violation does not bar such finding, particularly since the matter was fully
litigated . See, Bupra, footnote 6.
22 In any event, the record in the representation case amply supports the Regional
Director 's determination as to appropriateness of a unit of service station employees.
Those employees constitute a reasonably homogeneous and identifiable group, under sepa-
rate immediate supervision , with minimal interchange among other store employees, and
performing different functions and utilizing different skills than such other employees.
MONTGOMERY WARD & CO., INC. 1745
Respondent did not reply to the letter. In its brief, it contends that the Union's
request was defective since it "did not indicate a clear and unequivocal demand
for bargaining."
Respondent's contention is without merit. It is settled law that no "special formula
or form of words" is necessary to invoke bargaining, so long as the claim is implicit
from the Union's demand. Joy Silk Mills, Inc. v. N.L.R.B., 185 F.2d 732, 741
(C.A.D.C.); Dallas Concrete Company, 102 NLRB 1292, 1312, enfd. 212 F.2d 98
(C.A. 5). Implicit in the Union' s request to recognize was the demand that
Respondent deal and bargain with it. Respondent cannot reasonably claim that it
"was confused by the request for recognition." (N.L.R.B. v. Clearfield Cheese Co.,
213 F.2d 70, 74 (C.A. 3).) Cf. Philamon Laboratories, Inc., 298 F.2d 176, 180
(C.A. 2). In any event, a refusal "to recognize" the duly designated representative
of a majority of the employees in an appropriate unit in itself constitutes a refusal
to "bargain" within the meaning of Section 8(a)(5) of the Act. See McQuay-
Norris Manufacturing Company v. N.L.R.B., 116 F.2d 748 (C. A. 7).
As hereafter found, Respondent's refusal to recognize the Union was motivated
by rejection of the collective-bargaining principle and desire to gain time to subvert
unionization. Its claim that the Union's request to invoke bargaining was defective
appears to be an afterthought, advanced for the first time in the brief, to justify
its refusal to bargain.
3. The Union's majority status
The parties stipulated that 21 named invididuals were employed by Respondent
in the unit found appropriate when the Union made its recognition request
(August 27). General Counsel offered in evidence the authorization cards of 12
of those 21 employees. The signed cards contained the following clear and unequiv-
ocal language designating the Union as bargaining representative:
I hereby accept membership in Local 149, Mail Order Retail Department
Store and Warehouse Employees affiliated with. the I.B.T. and of my own
free will hereby authorize the above union to act for me as collective bargain-
ing agency in all matters pertaining to rates of pay, wages, hours of employ-
ment, or other conditions of employment.
Respondent contends that the cards are invalid and should not be counted for
purposes of determining the Union's majority because, they were obtained by
misleading statements and misrepresentations as to the purpose of the cards. It
relies heavily on the claim that the employees were told that the cards would be
used to obtain an election.
Relying on Dixie Cup, Division of American Can Company, 157 NLRB- 167,
Respondent aptly states the law here applicable: _
It is settled that an employee's execution of a clear and unambigious card
authorizing a union to act as his bargaining agent is effective for its stated
purpose regardless of any unexpressed reservations [the] employee may have.
However, where union misrepresents the purpose of authorization cards by
telling employees that the purpose of the cards is only to obtain a repre-
sentation election, the otherwise valid cards signed under the influence of
such representations will be invalidated.
Applying the foregoing principle, the Board and the courts have held that a card
unequivocally designating a union as bargaining representative is not vitiated by
the fact that the signer also is told that the card might be (or would be) used
to obtain an election. N.L.R.B. v. Cumberland Shoe Corp., 351 F.2d 917, 920
(C.A. 6), enfg. 144 NLRB 1268; N.L.R.B. v. Gotham Shoe Mfg. Co., 359 F.2d
684 (C.A. 2); N.L.R.B. v. Jas. H. Matthews & Co., 354 F.2d 432 (C.A. 8);
N.L.R.B. v. C. J. Glasgow Co., 356 F.2d 476 (C.A. 7). Thus, in Gotham the court
rejected the employer's contention that cards unequivocally designating a union
should be excluded because the solicitor represented or stated that "The cards are
for a vote"; or, "Sign the cards so we can have a vote"; or "You have to have a
certain percentage of signed cards in order to have an election." 61 LRRM at
2178. See also Burger Boy Food-O-Rama, 151 NLRB 477, enfd. 357 F.2d 881
(C.A. 4), where the Board rejected a similar contention grounded on the solicitor's
statement to the card signer that the card "would probably be for the election for
the Union to vote on it." None of these statements contradicted the clear bargain-
ing authority conferred by the cards. "The recital of alternative methods by which
25T-551-6T-vol. 160-111
1746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the card might be used to make the authority granted operative with respect to
the employer . . . neither negates the grant nor beclouds it with ambiguity."
(Glasgow Co., supra at 478.)
The record here does not support a finding that the Union's agents and solicitors
had represented or stated to the card signers that the "only" or "sole" purpose
of the card was to procure an election. Thus, Prifrel, the Union's representative,
testified that he merely told the employees at their August 26 organizational meet-
ing that, based on his past dealings with Respondent, "the Company would never
concede [to recognize the Union] unless we won an election" and, therefore,
That we must anticipate an election." He did not state that the cards would be
used only for an election.23 Indeed, he mentioned "the possibilities of recognition
without an election" and indicated that "when they signed the union card they
were . . . bona fide member[s], and [he] was their representative." Heller, one
of the card signers on whose testimony Respondent relies in seeking to invalidate
the cards, quoted the Union's agent as saying that the card "allowed them to
bargain for us" and also "to petition for an election "-24 Another employee, Cham-
pion, testified at one point that he was told that the cards were needed "to hold
an election"; at another point he testified that he signed it to "appoint the union
to represent" him as his "bargaining agent." Neither Heller, Champion, nor any
other card signer who testified (Alm, Reich, Kath, Creger, Hodgkins, Carlson,
and Austin) claimed that he was told that the sole purpose of the cards was to
obtain a Board election. In any event, in some instances the employees indicated
that it was merely their "impression" or understanding that the cards would be
used for an election.
Respondent attacks the validity of one card (Austin's) on the ground that the
union agent used a "cute trick" to obtain his signature, allegedly by telling him
that he would not discuss the Union or supply him information until he signed
his card. Austin's testimony on this point is confusing, incredible, and not entitled
to any weight. In any event, his testimony that this is what "I figured" and "just
the way I got it" suggests that he was referring to an impression rather than to a
representation.
Finally, Respondent contends that the Union coercively induced employees to
sign authorization cards by telling them (at union meetings) that those who had
not signed before the Union got in would have to pay an initiation fee. Although
Reich, on whose testimony Respondent relies, so stated at one point, he sub-
sequently expressed uncertainty as to whether he heard it from a union official
or someone else, and also acknowledged that "maybe I misunderstood." I prefer
to credit the more reliable testimony of the Union's representative (Prifrel) that
as the Union's spokesman at meetings he told the men it was the Union's policy
to waive initiation fees for all employees until after a contract was signed with
an employer. Since the fee waiver "appears to have been available to all of
Respondent's employees without restriction," it did not constitute improper organi-
zational inducement. See Gafner Automotive & Machine, Inc., 156 NLRB 577;
Edro Corporation, 147 NLRB 1167, enfd. 345 F.2d 264, 267-268 (C.A. 2).
zs Prifrel quoted Respondent's labor relations director, Scheidt, as telling him at a
quarterly meeting in 1964 (at which the parties discussed general policy matters affecting
all unionized company installations) that it was Respondent's policy not to accord
recognition to the Union on any basis other than an election.
u At a later point Heller testified that he "understood . . . they had to have the
signed cards in order to petition for an election." And in response to a leading question
(on cross-examination by Respondent's counsel) stated it was his "understanding" that
he was not appointing the Union as his bargaining agent without an election. Still later
(on redirect), he acknowledged reading the card unequivocally designating the Union
as his bargaining agent. Heller's (and other employees) confusing testimony as to what
he "understood" to be the purpose of the card fortifies the salutary principle applied in
cases of this type that "an employee's thoughts (or afterthoughts) as to why he signed
a union card . . . cannot negative the overt action of having signed a card designating a
union as bargaining agent." The Colson Corp. v. NLR.B., 347 F.2d 128, 135 (C.A. 8),
quoting from Joy Silk Mills, Inc. v. N.L.R.B., 185 F.2d 733, 743, cert. denied 341 U.S.
912. An employee's "belated declaration of a long previous state of mind directly at
variance with the clear written statement signed at the time of the events, cannot serve
retroactively to belie the unequivocal authorization which [the employee] executed."
Burger Boy Food-O-Rama, supra.
MONTGOMERY WARD & CO., INC. 1747
I find that the record does not establish that any of the employees ' signatures
were induced by material misrepresentations ; that all 12 cards obtained by the
Union were valid; and that at the time of its recognition request on August 27,
the Union represented a majority ( 12 out of 21 ) of the Respondent 's employees
in the appropriate unit.
4. The "good-faith doubt" defense
Respondent contends that, irrespective of the Union's majority status, it was
justified in rejecting its recognition request because it entertained a good-faith
doubt that the Union had a majority in an appropriate unit. The question whether
it entertained such doubt must be assessed in the light of all the surrounding
circumstances, particularly its contemporaneous conduct. Engineers & Fabricators,
Inc., 156 NLRB 919. "To be `fair' or in `good faith' doubt must have a rational
basis in fact." N.L.R.B. v. Glasgow Co., 356 F.2d 476 (C.A. 7). Where the
"respondent's conduct in seeking, during the whole period from the time of the
demand for recognition until the time set for the election [was] to undermine the
union, the Board could properly find that the employer's refusal to bargain was
for the purpose of gaining time to destroy the union's majority and that it had
no good-faith doubt of that majority." N.L.R.B. v. Gotham Shoe Mfg. Co., 359
F.2d 684 (C.A. 2).
The record shows, as I have found, that Respondent reacted to the Union's
recognition request with an antiunion campaign. It coercively interrogated employ-
ees concerning their union sympathies and activities, threatened employees with
reprisals for engaging in union activities, sought to induce an outspoken union
employee to transfer out of the bargaining unit, directed a supervisor to treat
prounion employees as "outsiders," and engaged in surveillance of a union meeting.
Such conduct is tantamount to "an absolute refutation of any good-faith doubt
on the part of the Company." (N.L.R.B. v. Overnite Transportation Co., 308 F.2d
279, 283 (C.A. 4).) It is indicative of a desire "merely to gain time to dissipate
the very majority which it now contends was in doubt." N.L.R.B. v. Philaznon
Laboratories, Inc., 298 F.2d 176, 180 (C.A. 2). See also, The Colson Corp. v.
N.L.R.B., 347 F.2d 128, 135 (C.A. 8).
Particularly in view of the foregoing, I am not persuaded by the reasons advanced
by Respondent for its alleged good-faith doubt of the Union's majority; namely,
because the Union did not offer to show its authorization cards, it had been unsuc-
cessful in organizing its store for years, "several" employees advised Respondent
that they did not want a union, the Union filed its petition for election soon after
its recognition request (thus indicating it was seeking an election), and Respondent
had reason to believe that the unit in which the Union claimed a majority was not
appropriate. In any event, under the circumstances herein, including Respondent's
failure to respond to the Union's recognition request, the Union was not obligated
to produce its authorization cards. N.L.R.B. v. Security Plating Co., 356 F.2d
725, 727 (C.A. 9) ("there was no necessity for the union to offer proof of the
genuineness of its majority claim absent a challenge by respondent."). Nor did the
Union's petition for an election afford Respondent a basis for good-faith doubt
since a union may seek alternative procedures for attaining recognition, particu-
larly where, as here, on the basis of past experience it reasonably anticipates company
rejection of a card check. See, Security Plating Co., supra, at 727; N.L.R.B. v.
Glasgow Co., 356 F.2d 476 (C.A. 7); N.L.R.B. v. Frantz & Co., 361 F.2d 180
(C.A. 7); cf. Dan Howard Mfg. Co., 158 NLRB 805. Finally, a good-faith doubt
as to unit appropriateness does not justify a refusal to recognize, if the unit is in
fact appropriate. Primrose Super Market of Salem, Inc., 353 F.2d 675 (C.A. 1);
Florence Printing Co. v. N.L.R.B., 333 F.2d 289, 291 (C.A. 4); Oklahoma
Sheraton Corporation, 156 NLRB 681, footnote 1.25
Accordingly, I find that Respondent's refusal to recognize the Union was not
based on a good-faith doubt of the Union's majority, but by a desire to gain time
to thwart organization of its service station employees. I conclude that the Union
was the uncoerced majority representative of its employees in an appropriate
25 Respondent did not specify the circumstances under which it learned that "several"
employees did not want the Union. An employer cannot establish a good-faith doubt of
majority on the basis of information obtained through coercive interrogation or of em-
ployee antiunion attitude otherwise obtained, if induced by unfair labor practices.
1748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit on the date of the Union's recognition request (August 27) ; and that Respond-
ent's refusal to recognize the Union as the statutory representative of its employees
in the bargaining unit was violative of Section 8(a)(5) and (1) of the Act.26
CONCLUSIONS OF LAW
1. By coercively questioning employees concerning union matters, by directly
and indirectly threatening them with reprisals for engaging in union activities, by
holding out economic benefits in order to dissuade union activity, by directing a
supervisor to treat prounion employees as "outsiders," and by engaging in sur-
veillance and giving the impression of surveillance of union activity, Respondent
has interfered with, restrained, and coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act, in violation of Section 8 (a)( 1 ) of the Act.
2. By discharging Alver Bratsch on December 1, 1965, in order to discourage
union activity, Respondent discriminated in regard to hire and tenure of his
employment, in violation of Section 8(a)(3) and (1) of the Act.
3. All automobile service station employees of Respondent's Southtown store
at Bloomington, Minnesota (excluding salesmen, shipping and receiving employees,
parts department employees, office clerical employees, professional employees,
guards, and supervisors as defined in the Act), constitute a unit appropriate for
the purpose of collective bargaining within the meaning of Section 9(b) of the Act.
4. At all times since August 26, 1965, the Union has been and still is the
exclusive representative of all employees in the aforesaid unit for purposes of
collective bargaining, within the meaning of Section 9(a) of the Act.
5. By refusing to recognize the Union as the exclusive representative of its
employees in the aforesaid unit, 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. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
7. Respondent has not violated Section 8(a)(3) and (1) of the Act by con-
structively discharging and refusing to reinstate David S. Miller and Melvin M.
Wersal.
THE REMEDY
The Recommended Order will contain the conventional provisions entered in
cases involving findings of interference, restraint, and coercion, discriminatory
discharges, and refusals to bargain collectively in violation of Section 8(a) (1), (3),
and (5) of the Act. These will require Respondent to cease and desist from the
unfair labor practices found; to offer reinstatement with backpay to the employee
discriminated against; 27 and, upon request, to require Respondent to bargain
collectively with the majority representative of its employees and, if an under-
standing is reached, to embody same in a signed agreement.
The unfair labor practices found herein are of such character and scope that in
order to insure Respondent's employees of the full rights guaranteed them by the
Act, it will be recommended that Respondent cease and desist from in any manner
infringing on the rights guaranteed its employees by Section 7 of the Act.
RECOMMENDED ORDER
Upon the entire record in the case, and the foregoing findings of fact and con-
clusions of law, it is recommended that Respondent Montgomery Ward & Co.,
21 The fact that the Union has since lost its majority is reasonably attributable to
Respondent's unfair labor practices Franks Bi os Co. v NLRB, 321 U.S. 702. As in
N.L R B v Varney Co., Inc., 359 F 2d 774 (C A. 3); "Actually, the [subsequent] election
resulted in a tie vote of [10 to 10]. Thus, if even one employee was improperly induced to
desert the union, the union's loss of majority status was unlawfully brought about."
2T In accordance with usual requirements , reinstatement shall be to the discriminatee's
former or substantially equivalent position, without prejudice to his seniority or other
rights or privileges. The discriminatee shall be made whole for any loss of earnings he
may have suffered by reason of the discrimination against him by payment to him of a
sum of money equal to that which he normally would have earned from his date of dis-
charge (December 1, 1965) to the date of offer of reinstatement, less net earnings during
such period , to be computed in the manner prescribed in F TV Woolworth. Company, 90
NLRB 289 and Isms Plumbing & Heating Co., 138 NLRB 716.
MONTGOMERY WARD & CO., INC. 1749
Incorporated (Wards Southtown Retail Store), its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Coercively questioning employees concerning union matters, directly or indi-
rectly threatening employees with any economic detriment, disadvantage, or reprisal
for engaging in union activities, holding out benefits in order to dissuade them
from union activity, directing supervisors to treat prounion employees as "outsiders,"
engaging in surveillance or giving the impression of surveillance of union activity,
and in any other manner interfering with, restraining , or coercing employees in the
exercise of their rights under Section 7 of the Act.
(b) Discouraging membership and activities in Local Union No. 149, Mail Order
Retail Department Store and Warehouse Employees, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, by discriminating
in regard to the hire and tenure of employment of Respondent's employees or by
discriminating in any other manner in regard to any term or condition of their
employment, in order to discourage membership or activities therein.
(c) Refusing to recognize and bargain collectively in good faith with the above-
named Union, as the exclusive representative of all its employees in the following
appropriate unit:
All automotive service station employees of Respondent's Southtown Store at
Bloomington , Minnesota (excluding salesmen, shipping and receiving employ-
ees, parts department employees, office clerical employees, professional employ-
ees, guards , and supervisors as defined in the Act).
2. Take the following affirmative action, which is deemed necessary to effectuate
the policies of the Act:
(a) Offer Alver Bratsch immediate and full reinstatement to his former or sub-
stantially equivalent position , without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of pay he may have suffered as a
result of his discharge, in the manner set forth in the section entitled "The
Remedy."
(b) Notify the above-named employee if presently serving in the Armed Forces
of the United States of his right to full reinstatement upon application in accord
ance with the Selective Service Act and the Universal Military Training and Serv-
ice Act, as amended, after discharge from the Armed Forces.
(c) Upon request, bargain collectively with Local Union No. 149, Mail Order
Retail Department Store and Warehouse Employees, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive
bargaining representative of all its employees in the unit described herein, with
respect to rates of pay, wages, hours, and other conditions of employment, and, if
an understanding is reached, embody such understanding in a signed agreement.
(d) Preserve and, upon request, make available to the Board or its agents, for
examination or 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 of this Order.
(e) Post at its store in Bloomington, Minnesota, copies of the attached notice
marked "Appendix." 28 Copies of said notice to be furnished by the Regional Direc-
tor for Region 18, after being duly signed by Respondent's representative, shall be
posted by it immediately upon receipt thereof, and maintained by it for at least 60
consecutive days thereafter, in conspicuous places, including all places, where notices
to employees are customarily posted. Reasonable steps shall be taken by the
Respondent to insure that such notices are not altered, defaced, or covered by any
other material.
(f) Notify said Regional Director, in writing, within 20 days from the date of
receipt of this Decision, what steps Respondent has taken to comply herewith 29
28 In the event that 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 further event that the Board's Order is enforced by a decree of a
United States Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order"
In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read : "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to comply herewith."
1750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT Is FURTHER RECOMMENDED that the complaint be dismissed in all other
respects.
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 National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT coercively question our employees about their union activities,
threaten them with reprisals for engaging in such activities, hold out any bene-
fits to employees in order to dissuade them from union activity, direct super-
visors to treat prounion employees as "outsiders," engage in surveillance or
give the impression of surveillance of union activity, or in any other manner
interfere with, restrain, or coerce our employees in the exercise of their rights
under the National Labor Relations Act.
WE WILL NOT discourage membership in, or activities on behalf of, Local
Union No. 149, Mail Order Retail Department Store and Warehouse Employ-
ees, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, by discriminating against employees with regard to their
hire or tenure of employment or any term or condition of employment.
WE WILL offer Alver Bratsch immediate and full reinstatement to his former
or substantially equivalent position, and make him whole for any loss of pay
he may have suffered by reason of the discrimination against him.
WE WILL bargain, upon request, with the above-named Union, as the exclu-
sive representative of all employees in the bargaining unit described below in
respect to rates of pay, wages, hours, or other conditions of employment, and,
if an understanding is reached, embody it in a signed agreement. The bargain-
ing unit is:
All automobile service station employees of our Southtown store at Bloom-
ington, Minnesota (excluding salesmen, shipping and receiving employees,
parts department employees, office clerical employees, professional employ-
ees, guards, and supervisors as defined in the Act).
All our employees are free to become, remain, or refrain from becoming or
remaining, members of Local Union No. 149, Mail Order Retail Department Store
and Warehouse Employees, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other labor organization.
MONTGOMERY WARD & CO., INCORPORATED (WARDS
SOUTHTOWN RETAIL STORE),
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.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 316
Federal Building, 110 South Fourth Street, Minneapolis, Minnesota 55401, Tele-
phone 334-2618.
Collins & Aikman Corporation and Textile Workers Union of
America , AFL-CIO, CLC. Case 31-CA-390. October 10, 1966
DECISION AND ORDER
Upon a charge filed by Textile Workers Union of America, AFL-
CIO, CLC, the General Counsel for the National Labor Relations
Board, by the Regional Director for Region 31, issued a complaint
160 NLRB No. 135.