Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

Mar 18, 1971

189 N.L.R.B. 80 (N.L.R.B. 1971)

80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Montgomery Ward & Co., Incorporated and District
No. 9, International Association of Machinists and
Aerospace Workers, AFL-CIO. Cases
14-CA-5712,14-CA-5585, and 14-RC-6420
March 18, 1971
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On November 16, 1970, Trial Examiner Melvin J.
Welles issued his Decision in the above-entitled case,
finding that Respondent had engaged in certain
unfair labor practices within the meaning of the
National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. He further found
that Respondent had not engaged in certain other
unfair labor practices alleged in the complaint and
recommended that such allegations be dismissed. The
Trial Examiner also found that certain objections to
conduct affecting the results of the election held in
Case 14-RC-6420 at the Respondent's plant on May
19, 1970, had merit, and recommended that the
election be set aside and a new election be directed.
The General Counsel filed exceptions to the Trial
Examiner's Decision and a supporting brief. The
Respondent filed cross-exceptions to the Decision, a
supporting brief, and a brief in answer to the General
Counsel's exceptions
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
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 briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Montgomery Ward & Co., Incorpo-
rated, Poplar Bluff, Missouri, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's recommended Order.
IT IS FURTHER ORDERED that the election conducted
on May 19, 1970, among employees in the designated
unit of Montgomery Ward & Co., Incorporated, at its
Poplar Bluff, Missouri, plant be, and it hereby is, set
aside, and that said case be, and it hereby is,
remanded to the Regional Director for Region 14 to
conduct a new election when he deems that circum-
stances permit the free choice of a bargaining
representative
Direction of second election I omitted from publica-
tion.
i In order to assure that all eligible voters may have the opportunity to
he informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Co, 394 U S
759 Accordingly, it is hereby directed that an election eligibility list,
containing the names and addresses of all the eligible voters, must be filed
by the Employer with the Regional Director for Region 14 within 7 days
after the date of issuance of the Notice of Second Election by the Regional
Director The Regional Director shall make the list available to all parties
to the election No extension of time to file this list shall be granted by the
Regional Director except in extraordinary circumstances Failure to
comply with this requirement shall be grounds for setting aside the election
whenever proper objections are filed
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MELVIN J WELLES, Trial Examiner: Case 14-CA-5585
and 14-CA-5712 are before me pursuant to charges filed
on April 27, 1970, and July 28, 1970, by District No. 9,
International Association of Machinists and Aerospace
Workers, AFL-CIO, herein called the Union, and a
complaint and a consolidated complaint issued June 24,
1970, and September 3, 1970, respectively, alleging that
Respondent violated Section 8(a)(1) and (3) of the Act. In
its answer, Respondent denied that it engaged in any unfair
labor practices In Case 14-RC-6420, an election was
conducted on May 19, 1970, pursuant to a Stipulation for
Certification Upon Consent Election, which resulted in a
5-4 vote against the Union. On May 22, 1970, the Union
filed timely objections to the election, and, on June 29,
1970, the Regional Director determined that a hearing on
the objections was necessary and ordered that Case
14-RC-6420 be consolidated with Case 14-CA-5585.
Subsequently, on September 3, 1970, Case 14-CA-5712 was
consolidated with the other two cases. A hearing was held
before me in Poplar Bluff, Missouri, on September 22 and
23, 1970, at which all parties were represented. Briefs were
thereafter submitted by the General Counsel and Respon-
dent and have been carefully considered I
Upon the entire record in the case and from my
observations of the witnesses, I make the following:
i General Counsel filed, with its brief, a "Motion to Correct Record"
Of the five asserted errors in the transcript three are of no consequence at
all, two relate to a single statement alleged to be violative of Section
189 NLRB No 21
MONTGOMERY WARD & CO 81
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent , an Illinois corporation , with its principal
office and place of business at Chicago , Illinois, operates a
store in Poplar Bluff , Missouri , the only facility involved in
this proceeding . During the calendar year 1969, Respon-
dent sold goods and sere 'ces valued in excess of $500,000 at
this facility , and received goods from outside the State of
Missouri valued in excess of $50,000 . I find that Respondent
is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
District No 9 International Association of Machinists
and Aerospace Workers, AFL -CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
Union organization of Respondent ' s auto service em-
ployees in effect had its genesis in a conversation between
employees Charles Hesselrode and Robert Overman in the
latter part of March 1970. About April 1, Hesselrode spoke
to employee Elmer Seesengood about the Union.
On April 2, 1970, Bert Townsend , a business representa-
tive of the Union , met with three of Respondent's
employees , Robert Overman, Charles Hesselrode , and Greg
Aldridge, at the Holiday Inn in Poplar Bluff. Townsend
had been asked to set up a meeting of the auto service
employees by Hesselrode . The next day, Townsend met
with Repsondent 's then operating manager , Pash Goodrin,
at its Poplar Bluff store and asked for recognition On April
7, 1970, the Union filed a petition for certification (Case
14-RC-6420 ); on April 20, 1970, a stipulation for
certification upon consent election was executed, and on
May 19 , 1970, the election was conducted As noted earlier,
the election resulted in a 5 to 4 vote against the Union, with
timely objections thereafter filed.
B The Alleged 8(a) (1) Violations
III. THE UNFAIR LABOR PRACTICES
A The Issues and Background
The complaint alleges eight specific instances of 8(a)(1)
violations by Respondent ,2 the discriminatory discharge of
employee Robert L . Overman, and the discriminatory
suspension and subsequent discharge of employee Charles
Hesselrode Substantially the same conduct, including the
discharge of Overman and the suspension of Hesselrode, is
involved in the objections to the Election.
8(a)(1) Respondent has moved to strike General Counsel ' s motion or in
the alternative . that it be denied , asserting three grounds
I The Motion to Correct Record presented herein by its
combination of the trivial with the critical, was intended to mask the
true purpose of the Motion , that of tailor-making the record to the
requirements of the General Counsel's argument
2 The Motion to Correct Record presented herein is an unlawful
and unsubstantiated , collateral attack on the veracity and validity of
the record herein
3 The Motion to Correct Record presented herein was not timely
made
Although I prefer good grammar to bad and accuracy in even irrelevant
or inconsequential matters to inaccuracy, I think the time consumed in
making motions to correct as to such trifles could be put to better purpose,
particularly when a number of other obvious inaccuracies have not been
mentioned As my own recollection of what was said in these particular
respects does not satisfy me that the errors were necessarily in the
transcription rather than of the speaker, and in view of the lack of
agreement by Respondent , I deny the motion as to those items
As to the statement alleged as on 8 (a) (I) violation, the transcript of
employee Aldridge 's testimony has Supervisor Eason stating to Aldridge,
after questioning him about his union membership , " I don't believe that I
would be in on something like that " The General Counsel would
On April 4, the day Union Representative Townsend
requested recognition , Supervisor Troy Eason questioned
employee Greg Aldridge whether he was "messed up in this
mess " Aldridge replied " I am not going to lie to you, I am
If you want to know any more, you will have to talk to our
business representative ." Eason then asked who else was
"in on the deal ," and Aldridge replied "I am not allowed to
tell anything . You're supposed to talk to our business
representative " To Eason's question "What do they want?"
Aldridge again repeated that he was not allowed to tell.
Eason said , " I didn't believe that you would be in on
something like that."3
"Correct" this to read " I didn't believe that you would be in on something
like that " Contrary to Respondent 's view, and perhaps also to the General
Counsel's, I do not regard the two versions as materially different , both, to
me express the speaker's surprise at what the listener has done That this
was the intended meaning of the remark , worded either way, was in any
event crystal clear by virtue of Eason's testimony After testifying to the
rest of the conversation with Aldridge confirming what Aldridge said,
Eason was asked by Respondent ' s counsel , " Did you ever tell any
employee that you were surprised that he was involved in union activities'"
Eason replied " I believe this completes the statement with Aldridge, yes, I
did " As respondent's counsel does see a difference "of massive
consequence" between the two versions , I am constrained to grant the
General Counsel's motion in this respect so that the remark will have the
meaning Respondent 's witness attributed to it
t In the light of the General Counsel's brief , and the way the evidence
developed , the eight telescoped into six
I The above facts are based on the credited testimony of Aldridge
Eason admitted that he asked Aldridge whether he was in the Union,
agreed with Aldridge's testimony about the latter's response . and expressed
surprise that Aldridge was involved , but he testified in effect that nothing
more was said, although he was not specifically asked whether he asked
Aldridge who else was in on the deal Although Fason impressed me as a
credible witness I am inclined to believe Aldridge 's recollection of this
incident was the better of the two
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The questioning of Aldridge about his union member-
ship, and that of other employees, is clearly unlawful
interrogation in violation of Section 8(a) (1) of the Act.
Respondent's contention that Aldridge's answers showed
he was not coerced would not constitute a defense even if
the answers were so construed, for the tendency to coerce,
not whether the employee believes he is being coerced, is
the test to be applied Wassau Steel Corp. v. N.L R.B, 377
F.2d 369, 372 (C.A. 7) Eason's expression of disbelief, or
surprise, adds nothing to the violation.
Although Repsondent throughout its operations has had
a rule against solicitation in its personnel manual for about
3 to 4 years (a perfectly valid rule), this rule had not been
posted at Poplar Bluff until about the middle of April 1970.
At that time, Store Manager Correl posted this rule in the
locker of the men's bathroom.4 About a week before May
19 election, Correl took employee Hesselrode to the
bathroom, read the posted rule to him, and said "Charlie, I
want you to know it is here " Respondent, by Correll, has
solicited for the United Fund Campaign on company time,
and employee Aldridge testified that there had been some
selling of candy by religious organizations Correl ex-
plained the posting of the rule as follows
A Well, it had come to my attention that some
people were talking about their activities that was going
on in the store, and we had work time to perform and I
wanted everyone to know the proper method of
handling a situation like this, so there would be no one
in trouble anywhere along the line, they would have a
fair understanding of it
Q Has it ever before this time come to your
attention that the employees were standing around
talking9
A. No, sir
Q When they should have been working9
A No
The General Counsel contends in its brief to me that the
posting of the rule was unlawful on the sole ground that the
posting occurred after the advent of the Union 1 do not
read the cases cited to me by the General Counsel, or any
other Board cases, as establishing such a flat rule Nor do I
regard the fact that Respondent solicited employees during
working hours for the United Fund as converting an
otherwise legal no-solicitation rule into an unfair labor
practice
However, the fact that Store Manager Correl singled out
employee Hesselrode, known to be pro-Union (he had
been the employee who asked permission to attend the
meeting at the Board's St. Louis office), for specific reading
of the rule, taken together with the fact of its being posted
after the Union filed its petition and the absence of any
evidence to the effect that Hesselrode had been guilty of
violating the rule as stated in the manual, in my opinion tips
the scales against Respondent and leads to the inference
that the posting was designed to interfere with the
employee's right of self-organization rather than to
maintain production and discipline. I find, therefore, that
Repsondent violated Section 8(a)(1), in these circumstances,
by posting its no-solicitation rule in the middle of April.
The evening of Friday, April 17, at quitting time,
Hesselrode asked Eason whether he could attend an NLRB
meeting in St Louis the following Monday, and he was
granted permission According to Hesselrode, Eason asked
whether the meeting in St. Louis was "over Bob Overman
getting fired." Although here, too, Eason indicated that
nothing more was said other than the request by Hesselrode
and the granting of permission of Eason, Eason's
recollection did not seem as certain as Hesselrode's, and I
find that the question was asked. However, the casual
nature of,the question and the fact that Hesselrode brought
up the subject of going to the NLRB "meeting" satisfy me
that the remark was neither intended to coerce nor would it,
in the circumstances, have a tendency to coerce I find no
violation in this respect. Palm Beach Woodwork Company,
Inc., 169 NLRB No. 40, cited by the General Counsel in
this respect, is wholly distinguishable, for the inquiry there
was not casual, but was rather in a context of antiunion
talks and attempts to dissuade attendance at the meeting
Some time in April, according to Hesselrode, he told
Eason he needed to make more money. Eason replied that
"if we settled down and go to work, quit thinking about the
union mess, we could all make some money "
Early in May, Aldridge and Hesselrode were discussing
with Eason the Company's commission rates, indicating
dissatisfaction with the amount of money they were
earning Eason said "If you all would quit worrying about
the mess that you are in, you could settle down and make
some money in this commission deal."
Hesselrode was obviously confused in his testimony
about when the conversation with Eason took place. As he
did not testify to any other conversation along these lines
with Eason, and in view of the fact that Aldridge's
testimony about the May incident places Hesselrode there
and has Eason replying in almost identical fashion, I
believe, and find, that there was only one such conversa-
tion, which took place in May, and Eason's remark was as
testified to be Aldridge.
This incident does not, in my opinion, constitute an
unlawful promise of benefit to the employees. Indeed, the
conversation was initiated by the employees and was
prompted by their desire to make more money. Eason's
response, that the present commission system would
produce more money if the employees would settle down
and go to work and stop worrying about "the mess,"
obviously meaning the Union, was rather a denial of any
increase in benefits than a promise of one and cannot, as I
view it, be construed as other than an "if you work harder,
you'll earn more commission" exhortation.
On May 11, employees Overman and Aldridge were
driving to a union meeting at a Holiday Inn on Highway 67
' The evidence does not reveal whether this bathroom was for the use of
the auto service shop employees or for storewide use
' The testimony of Aldridge as to religious organizations selling candy
was too vague to he taken into consideration
MONTGOMERY WARD & CO. 83
in Poplar Bluff. They passed Goodin, driving with his wife
and child, about 300 yards from the Holiday Inn. Overman
and Aldridge then turned left into the motel. After they
parked and were on their way up the steps to the room
where the meeting was to be held, they saw Goodin driving
past, coming from the rear of the Holiday Inn. Aldridge did
not notice where Goodin was looking, but Overman
testified that Goodin was looking up toward the room
where the meeting was held just when he and Aldridge
reached it. Goodin did not deny these facts, although in his
testimony he made a reference to having looked up at the
room. Goodin did, however, explain his conduct on the
evening in question. According to him, he had driven south
of the Holiday Inn with his wife and child to get a root beer.
While driving north toward his home (which was north of
Holiday Inn) he decided to check the parking lots of the
two major motels in Poplar Bluff to see if friends they were
expecting had arrived. After noticing Overman and
Aldridge pass his car and turn left into Holiday Inn,
Goodin deliberately avoided following their car, drove
north, and then came back to Holiday Inn and checked
around the motel to see if their friends had arrived.
Absent any explanation, the facts would present a clear
case of unlawful surveillance. However, the explanation
offered was not implausible, particularly in view of the facts
that Goodin's wife and child were with him, and could
scarcely have anticipated seeing Overman and Aldridge
drive by him while he was on the road 300 yards south of
the motel, and that there is no reason to suspect he knew
anything about a scheduled meeting of the Union there or
anywhere else. Furthermore, Goodin was in all respects an
extremely credible witness, with an obviously clear
recollection of the events, including this one, about which
he testified, especially with respect to corroborating detail. I
find, therefore, that the General Counsel's prima facie case
of unlawful surveillance has been rebutted by a convincing
explanation of the coincidence of Goodin's momentary
presence at the scene of the union meeting, and dismiss this
allegation of the complaint.
On the morning of May 19, the day of the election,
employee Seesengood came to the plants and was asked by
Eason why he (Seesengood) had not been at a company
breakfast that morning. After Seesengood said he was
farming and had no time, he asked Eason what was said at
the breakfast. Eason then told Seesengood that it would
cost $ 50 to join the Union, which "would do him no good",
that "If you get a raise, you will have to go though the union
because the company won't give you any more raises"; and
that he would "have dues each month." Seesengood replied
that "The Company didn't give you any raises anyway, so it
doesn't make much difference." 7
Presumably, Eason's statements to Seesengood were
responsive to the latter's question as to what occurred at the
company breakfast. There is no evidence at all, however, as
6 He was not in work status that day; I assume he came to vote in the
election.
r These findings are based on the credited testimony of Seesengood.
Eason's testimony did not conflict with Seesengood's to any great extent;
Eason thought he might have said $40 rather than $50 as the amount of
union dues and that he indicated the employees might have to "negotiate
through the union, not with the company." As heretofore noted, I found
Eason to be a credible witness, but his recollection of precise language did
to what did occur there. In any event, whether or not
Eason was repeating what' had been said at the breakfast,
his remarks to Seesengood must still be judged vis-a-vis
Section 8(a)(1) by their content. Although Eason may have
intended to convey to Seesengood only the notion that
future benefits could come only by collective bargaining if
the Union became the employees' representative, in my
opinion his actual remarks overstepped the bounds of
legitimate free speech or comment and contained implied
threats of reprisal and a suggestion that the Company
would not bargain with the Union, which "Could do him
[Seesengood] no good." I find, accordingly, that Respon-
dent, by these statements of Eason, violated Section 8(a)(1)
of the Act.
C. The Alleged 8(a)(3) Violations
1. Robert Overman
Robert Overman was hired by Respondent about
February 5, 1970. He had been recruited by Auto Service
Manager Eason. Just before Overman started working at
Respondent' s auto service shop, Eason mentioned to
Aldridge and Hesselrode that a new man had been hired,
naming Overman, who had been fired from the Poplar
Bluff Ford agency for union activities. Overman's partici-
pation in "union activities" has already been set forth.
Although there is no direct evidence of Respondent's
knowledge of these activities, Respondent in its brief to me
does not suggest any lack of knowledge that Overman was
for the Union.
Overman was discharged by Respondent on April 16.
The reason aasigned to him was his alleged failure to
account for his time the previous day in working on a job
that Respondent thought he should have completed then.
At the hearing, Respondent adduced evidence of other
alleged deficiencies in Overman's relatively short work
history with the Company. The General Counsel's conten-
tion that the discharge was discriminatory rests on the fact
that Overman was active in bringing the Union in to
organize the auto service employees, that he was, in the
General Counsel's view, not particularly derelict in his
duties on April 15,8 and that this was the first time
Respondent had discharged an employee in similar
circumstances, including checking with other shops to
determine the time it should take to do the work and having
Store Manager Correl personally checking on the incident.
On the entire record, I am satisfied not only that the
General Counsel has failed to prove by a preponderance of
the evidence that Overman was discriminatorily discharged,
but also that Respondent has established that it discharged
him for cause. Thus, as indicated, there is no direct
evidence that Respondent knew of Overman's union
activities at the plant, and its knowledge of, or belief that he
had engaged in, union activities at a previous place of
not seem as clear as that of other witnesses : understandably so, since
Eason was a party to almost all the conversations and events involved in
this case and therefore less likely to remember accurately specific details
than employees each of whom were less than totally involved.
" The General Counsel seems to characterize the incident as only not
having the work "ready at the precise time promised by the service
manager."
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment, militates against General Counsel's case-for
Respondent hired Overman with that knowledge Further,
the 8(a)(1) violations I have found are few in number and
were not in any way directed at Overman. The General
Counsel does not even contend that Overman could, or did,
fully explain his time on April 15, while Respondent's
evidence does support its assertion that thejob in question
should have been completed in less time than it was, and
the evidence also establishes that Respondent spoke to
Overman about alleged derelictions on his part on at least
three occasions--Overman admitted this much-before
there was any union on the scence Without ascribing fault
to Overman in any of these (he claims he was not at fault), it
is clear that Respondent at least suspected he was each
time. The very facts that Overman was not discharged
summarily but was called in to discuss the April 15 job and
that Store Manager Correl participated in the discussion
are both factors supporting Respondent's, rather than
General Counsel's, postition. In view of these considera-
tions, I see no need to detail the evidence concerning the
April 15 job or those about which Overman had been
spoken to earlier. I find that Respondent did not violate
Section 8(a)(1) and (3) by discharging Overman.
2 Charles Hesselrode
a. The Suspension
As noted above, Hesselrode, an employee of Respondent
for 5 years, was primarily responsible for the Union's
organizational efforts among Respondent's auto service
shop employees. He attended, with the Company's
permission, an NLRB meeting in St. Louis on April 21,
1970. On April 17 he was suspended9 for 2 days, April 21
and 22, a suspension the General Counsel attributes to his
union activities. Respondent contends that Hesselrode's
suspension resulted, as did Overman's discharge, from his
performance, or lack of it, on April 15.
For essentially the same reasons set forth with respect to
Oveman's discharge, I find that Hesselrode's suspension
was in fact motivated by what Respondent viewed as his
poor performance on April 15, rather than his union
activities. Although Overman was principally responsible
for the actual work on the 1962 Chevrolet on April 15,
Hesselrode was in charge that day-it being Eason's day
off. Like Overman, Hesselrode was called in to account for
his time and was unable to do so to Respondent's
satisfaction. The very fact that Hesselrode was suspended
for only 2 days rather than discharged tends to support
Respondent's position, for Respondent had direct knowl-
edge that Hesselrode was a proponent of the Union based
on his own request to attend the NLRB meeting in St.
Louis, yet it did not discharge him at that time. The
explanation for the difference in treatment between
Overman and Hesselrode is entirely plausible-Respon-
dent believed Hesselrode to be more proficient; he had
worked for Respondent for 5 years; and Respondent was
inclined to be lenient with Hasselrode because of his wife's
illness. I conclude, accordingly, that Respondent did not
violate Section 8(a)(1) and (3) by suspending Hesselrode
for 2 days.
b The Discharge
On June 27, 1970, Hesselrode was discharged by Store
Manager Goodin That morning, Goodin saw Hesselrode
smoking while working on a boat trailer in the auto service
shop. According to Goodin's testimony, he saw Hesselrode
take out a cigarette and light it while looking right at him
(Goodin). Goodin watched for a few moments, then walked
over the Hesselrode and told him "Charley, you leave me
no choice but to terminate you for failure to comply with
company procedures." io Hesselrode replied, "Well, that's
up to you, and Goodin told Hesselrode to pick up his
compensation sheet, timecard, etc., and his pay would be
made up ii
A discharge for smoking a cigarette seems at first blush
rather harsh treatment of an otherwise competent employee
with 5 years service The General Counsel's argument that
the discharge was motivated by Hesselrode's union
activities relies in part on the harshness of this punishment,
on the alleged fact that smoking in the auto service shop
was a common occurrence, with almost all employees
regularly violating the long standing rule against smoking,
and on the fact that Goodin himself had violated the rule
on many occasions, all pointing to the fact that noncompli-
ance with the rule was a pretext rather than the reason for
Hesselrode's discharge.
The testimony does establish that at least up to May 13,
1970 (the significance of this date will appear), the rule
against smoking in the auto service shop was honored
primarily in the breach. The situation after May 13 is not
that clear. Employee Seesengood testified generally to
smoking while working and to seeing Goodin smoke in the
auto shop, but he did not specify any date as to the latter
and could not remember whether Goodin or Correl saw
him smoking there Aldridge testified that he did see
Goodin smoking after May 13 in the auto service shop and
also in the store. He did not specify exactly where in the
auto shop Goodin's smoking took place or the time of day
Goodin smoked in the store. Hesselrode testified that he
smoked regularly all during his employment. He was aware
of the rule against smoking, but also that it had never been
enforced. Although he recalled the specific warning by
Goodin on May 13 (discussed below), he testified that
Goodin smoked in the auto shop thereafter.
Goodin testified that about May 10 he received a letter
from the Company's district office, which made reference
to a serious fire in another Montgomery Ward store, and
instructed all operating managers to reemphasize the
no-smoking rule to employees and to point out to them that
violation would result in dismissal As a result of this letter,
9 Although Hesselrode testified he was told of the suspension on
Saturday, April 18, rather than Friday, April 17. Eason, Correl and
Goodin all place the time as April 17, and I so find
10 Hesselrode testified that Goodin said, "Charley, I'm going to have to
let you go for smoking " There is no significant difference between the two
versions, but I find in accordance with Goodin's testimony on this and any
other differences between the testimony of these two witnesses
ii That evening, Hesselrode returned to the store and complained to
Goodin that he had been unfair Some harsh words were admittedly said
by Hesselrode, but they have no bearing on the discharge, which had
already been consummated
MONTGOMERY WARD & CO 85
testified Goodin, he held a meeting with the employees on
May 13, explaining to them about the letter he had received
and saying that from then on there would have to be strict
adherence to the rule against smoking Goodin indicated in
his talk to the employees that it was "going to be rough,"
that he was "one of the worst offenders in smoking," but
that they were all going to have to "be real careful about it."
Goodin also had all the employees sign a statement that
they understood various safety rules, including that relating
to smoking, and were aware that violation of any of them
could be cause for immediate dismissal. Goodin thereafter
warned several employees about smoking or carrying an
unlit cigar or cigarette. He specifically warned Hesselrode
twice, the first time for having a lit cigarette about May 20,
and the second about 3 weeks later for having an unlit
cigarette
There is thus no question but that, as of May 13, Goodin
explained to the employees that the previous failure to
enforce the no-smoking rule would no longer be the case.
As against this, there is the testimony of Aldridge and
Hesselrode that Goodin himself violated the rule. However,
I am convinced that Goodin, who in his warning to the
employees admitted having been one of the "worst
offenders," was scrupulously careful thereafter Indeed,
Hesselrode's own testimony about seeing Goodin smoke
the afternoon of Hesselrode's discharge places Goodin
within "a step" of the ashtray in the customer area by the
cashier's window, and Aldridge's testimony about Goodin
smoking in the store does not pinpoint the time or refute
Goodin's statement to the effect that he smoked there only
before customer hours (Obviously, fire danger was of great
significance in the auto service shop, customer considera-
tions were the purpose of the no-smoking rules in the
store.)
A final interesting bit of testimony was that of employee
Crandell Thornburgh, who testified that, about 2 weeks
before Hesselrode's discharge, Hesselrode was talking to a
group including Thornburg, Roger Burns, and another
employee and said if he thought Goodin would fire him he
"would light up a cigar right now." Hesselrode denied this
conversation. Although the alleged "threat" had nothing
whatsoever to do with Respondent's motivation, for there is
no evidence that the conversation was reported to
management at the time, I believe Thornburgh was telling
the truth and credit his testimony over Hesselrode's flat
denial. The incident is relevant, however, as supporting
Goodin's testimony that Hesselrode seemed to be looking
right at Goodin and lighting up quite deliberately on June
27 In any event, I am convinced that Goodin, who, as I
have already indicated, was a crebible witness, did in fact
discharge Hesselrode for violating the no-smoking rule. I
find that Respondent did not violate Section 8(a)(1) and (3)
by discharging Hesselrode.
Having found that Respondent violated Section 8(a)(1) in
two respects between the filing of the petition and the
12 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings conclusions, recommendations, and recommended Order herein
shall as provided in Section 102 48 of the Rules and Relations, be adopted
by the Board and become its findings conclusions and order and all
objections thereto shall he deemed waived for all purposes
election, I shall recommend that the election of May 19,
1970, in Case 14-RC-6420 be set aside
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent, Montgomery Ward & Co., Incorporat-
ed, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. District No. 9, International Association of Machin-
ists and Aerospace Workers, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3 By interfering with, restraining, and coercing its
employees in the exercise of their rights guaranteed in
Section 7 of the Act in the manner above found,
Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
IV THE REMEDY
Having found that Respondent violated Section 8 (a)(1) of
the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I 12 hereby issue the following recommended i2
ORDER
A. Respondent, Montgomery Ward & Co., Incorporat-
ed, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees about their union
membership in a manner constituting interference, re-
straint, and coercion within the meaning of Section 8(a)(1)
of the Act.
(b) Posting and calling to its employees' attention its no
solicaitation rule in a manner calculated to interfere with
the employees' right of self-organization
(c) Threatening employees with reprisals for supporting
the Union.
(d) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights guaranteed in Section 7 of the Act
2. Take the following affirmative action designed to
effectuate the policies of the Act.
(a) Post at its Poplar Bluff, Missouri, place of business
copies of the attached notice marked "Appendix.' 13 Copies
of said notice, on forms provided by the Regional Director
for Region 14, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof and maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
i i In the event that the Board 's Order is enforced by a Judgment of a
United State Court of Appeals, the words in the notice reading "Posted by
order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notices to employees are customarily posted Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material
(b) Notify the Regional Director for Region 14, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith 14
B The election held on May 19, 1970, in Case
14-RC-6420, is set aside.
C The complaint is dismissed insofar as it alleges that
Respondent engaged in any unfair labor practices other
than those found herein
'+ 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 20 days from the date of this Order what steps Respondent
has taken to comply herewith "
WE WILL NOT interrogate our employees about their
union membership.
WE WILL NOT interfere with our employees ' right to
self-organization by the manner and timing of posting
and calling to their attention our no-solicitation rule
WE WILL NOT in any similar manner interfere with,
restrain, or coerce our employees in the exercise of their
rights under Section 7 of the Act
Dated By
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees with reprisals
for engaging in union activities.
MONTGOMERY WARD &
CO, INCORPORATED
Employer
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone
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.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, 1040
Boatmen's Bank Building, 314 North Broadway, St Louis,
Missiouri 63102, 314-622-4167