Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

Mar 20, 1973

202 N.L.R.B. 593 (N.L.R.B. 1973)

MONTGOMERY WARD & CO. 593
Montgomery Ward & Co., Incorporated and Retail
Clerks Union , Local 1364, Retail Clerks Interna-
tional Association, AFL-CIO. Case 20-CA-6445
March 20, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On October 24, 1972, Administrative Law Judge
Herman Corenman issued the attached Decision in
this proceeding . Thereafter , the General Counsel and
Charging Party filed exceptions and supporting
briefs and the Respondent filed a brief in support of
the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the, record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings , findings'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.2
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 Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully
examined the record and find no basis for reversing his findings.
2 As the record and the briefs adequately present the positions of the
parties, the Charging Party's request for oral argument is hereby denied.
DECISION
STATEMENT OF THE CASE
unfair labor practice strike and prolonged by unfair labor
practices of the Respondent described in the complaint as
amended, and that as a consequence thereof the Respon-
dent's refusal to reinstate all the strikers on November 14,
1970, violated Section 8(a)(1) and (3) of the Act. The
Respondent's answer denies the commission of any unfair
labor practices.
A hearing was held before the Administrative Law Judge
on various dates in January, March, and April 1972, at
which all parties were represented and were afforded
opportunity to introduce evidence and to call, examine,
and cross-examine witnesses, and to make oral argument
on the record. Briefs were thereafter submitted by counsel
for the General Counsel, counsel for the Respondent, and
counsel for the Charging Union on July 31, 1972, and
August 1, 1972, and they have been carefully considered.'
Upon the entire record in the case and from my
observation of the witnesses and their demeanpr, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The pleadings establish, and I find, that Montgomery
Ward & Co., Incorporated, herein called the Respondent
or Wards, or Company, is an Illinois corporation with a
place of business, among many others, located at Redding,
California, where it is engaged as a retailer of dry goods
and appliances. During the past year, Respondent, in the
course and conduct of its business operations, sold and
shipped from its facilities in the State of California, goods
and products valued in excess of $50,000 directly to
customers located outside the State of California, and
purchased and received goods and products valued in
excess of $50,000 which were shipped to its facilities in the
State of California directly from suppliers located outside
the State of California; and during the past year Respon-
dent received gross revenues in excess of $500,000.
Respondent at all times material herein has been an
employer engaged in commerce and in operations affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks Union , Local 1364 , Retail Clerks Interna-
tional Association , AFL-CIO, herein called the Union, is
and, at all times material herein , has been a labor
organization within the meaning of Section 2 (5) of the Act.
HERMAN CoRENMAN, Administrative Law Judge: Pur-
suant to a charge filed by the Union on November 20,
1970, and served on the Respondent on November 23,
1970, and a first amended charge filed and served on
December 16, 1970, a complaint issued on September 30,
1971, alleging in essence that an economic strike called by
the Union on September 29, 1970, was converted into an
I Counsel for the Respondent on June 28, 1972, filed with me a motion
to correct the transcript of the proceedings consisting of 74 pages and
itemizing 864 corrections. As neither counsel for the General Counsel or the
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The only establishment of the Respondent involved in
these proceedings is its store at Redding, California, where
the Respondent and the Union have had a number of years
Charging Union have filed objections to the motion , the motion is granted
and it will be added to the exhibits in the record.
202 NLRB No. 100
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of collective-bargaining relations covering a Board-certi-
fied unit of the employees at the Redding store. The most
recent collective-bargaining agreement for the term Sep-
tember 1, 1967, to September 1, 1970, was reopened for
negotiations by the Union on June 30, 1970, and was
considered terminated by the Respondent on September 1,
1970. Negotiation meetings for a new agreement were held
August 27, and September 9, 10, 15, 16, 21, and 28, 1970.
During the course of these negotiation meetings, the
Respondent agreed to extensions of the expired contract,
and that increased wage adjustments would be retroactive
to September 1, 1970.2 The Union struck and began
picketing the Redding store on September 29, 1970.
Unresolved issues at the start of the strike were short-hour
premium pay, prorata vacation pay, age discrimination
clause , wages , holiday pay, Sunday minimum hours, and
union security for short-hour "students". The "student
issue ," it is fair to conclude, was the crucial issue which
sparked the September 29 strike. The expired 1967-70
contract contained the usual union-shop clause requiring
all unit employees, including part-time students, to become
union members after 30 days as a condition of employ-
ment. The Respondent's negotiators, pointed out to the
Union that the Union's collective-bargaining agreement
with another major department store in Redding exempted
part-time students from the union-shop clause require-
ments, and that Respondent was entitled to the same
exemption for its part-time students. The Union would not
agree to the Respondent's proposal.
The General Counsel makes no claim that the Respon-
dent engaged in bad-faith bargaining at any time , either
before or after the September 29, 1970, strike, but he does
allege that certain alleged 8(a)(1) conduct by Respondent's
supervisors both before and after the strike thereby
converted the strike into an unfair labor practice strike and
prolonged it, so as to accord to the strikers all of the rights
to reinstatement which the law accords to unfair labor
practice strikers.
After the strike began on September 29, 1970, no more
negotiating meetings were held between the Respondent
and the Union until November 14, 1970. On that date all
contract issues, including the "student issue" were re-
solved3 in a meeting between Mr. Chevalier, Respondent's
employee relations manager for the western region, and
Mr. Cowell, the Union's attorney, at Mr. Cowell's law
office in Oakland, California. Also present and represent-
ing the Union were International Representative Kiberski,
Financial Secretary and Chief Executive Koenig, and
Business Representative Robert O'Brien. However, new
issues created by the strike prevented settlement of the
strike. The Union offered to terminate the strike with the
reinstatement of all the strikers. Additionally, it agreed to
take no reprisals against any employees who had returned
2 The last 10-day contract extension was granted by Respondent's
director of labor relations, Scheidt, on September 25 at the request of Union
Attorney Davis. The Respondent's answer alleged that the September 29,
1970, strike breached the no-strike clause in the extended contract, and as a
consequence the strikers were engaged in unprotected activity. This defense
was abandoned by the Respondent in the course of the trial, and I will
therefore give no consideration to it in arriving at a decision herein.
3 It was agreed that full-time high school or college students would be
exempted from the union-shop provision, but, before hiring students,
to work during the strike and it proposed that the union
shop not be effective for nonmembers until January 1,
1971. Chevalier pointed out to Cowell that the Respondent
had made a commitment to the strike replacements that
they were permanent replacements and he doubted the
economic feasibility of reinstating all the strikers, while at
the same time retaining the permanent replacements to
whom the Respondent had committed itself . Chevalier
agreed to submit the Union's proposals to Mr. Scheidt at
Chicago.
On November 19, 1970, having consulted with Scheidt at
Chicago, Mr. Chevalier phoned Mr. Cowell and told him
that the Respondent was agreeable to settle the strike as
follows: (1) that the Union agree to no reprisals , (2) that
the union shop apply on and after January 1, 1971, and (3)
that the Respondent would take back all strikers who had
not been permanently replaced, the remainder to be placed
on a preferential hiring list. Before Chevalier could proceed
further, Cowell interrupted him to state that the strike
would not be terminated unless all the strikers were
returned to work. The strike continued and was still in
progress at the time of the hearing in this case.
On December 21, 1971, the parties met again at Redding
at the request of the mayor and city council of Redding in
an effort to settle the strike. Federal Mediator Jerry Finley
was also present. A strike settlement could not be reached.
The Respondent was willing to take back immediately
some but not all the strikers.
Following definite word from Chevalier on November
19, 1970, that the Respondent would take back immediate-
ly only those strikers who had not been replaced, the
Union filed a charge with the Board on the following day,
November 20, 1970, alleging that the Respondent had
engaged in unfair labor practices in violation of Section
8(a)(1) and (3) of the Act.4
In support of his contention that the economic strike of
September 29, 1970, was converted into an unfair labor
practice strike and was prolonged by unfair labor practices,
the General Counsel called a number of witnesses to testify
to remarks allegedly containing threats of reprisal or
promises of benefits made by supervisors to rank-and-file
striking employees.
The Respondent's management, having been advised on
September 28, 1970, that the strike would be called the
following day, began making preparations to continue
operating during the strike with employees who they hoped
would not join the strike or who would abandon the strike
and with replacements, both permanent and temporary,
who they would hire during the strike. Thus, on September
28, Chevalier dictated a statement that management
personnel would read to employees concerning manage-
ment's position to be stated to employees concerning the
strike. The statement read as follows:
Respondent was required to offer part-time employees additional hours of
work, so that student hiring would not cause a loss of work to the part-time
employees.
4 In an amended charge filed in this case on December 16, 1970, the
Union also charged that the Respondent had "failed to engage in good faith
bargaining since about August 1970-with no intention of signing a
collective bargaining agreement ," in violation of Sec . 8(a)(5) of the Act. This
allegation was dismissed by the Regional Director on September 30, 1971,
and the dismissal sustained by the General Counsel on December 8, 1971.
MONTGOMERY WARD & CO. 595
It is our intention to keep this store open and
running. We will attempt to permanently replace
strikers. We will not abandon you as far as being an
employee of Montgomery Ward.
Merchandise Manager John Gelegan was summoned to
Store Manager Hanks' office on September 28 and
instructed to read the aforesaid statement to employees.
Gelegan credibly testified that he went into the auto service
department, the fashion areas, furniture, stereo and TV,
carpets and drapes, and the children's departments. In the
auto service department, Gelegan called the employees
together so he could talk to them in a group. Gelegan
testified credibly that he first asked the group if they would
cross the picket line in the event of a strike. When the
group said they would not, Gelegan then read to them the
prepared statement verbatim, above, that had been handed
to him by Store Manager Hanks. Operating Manager
Philip Ewart also was instructed by Mr. Chevalier to read
or show the aforesaid statement about the Company's
decision to keep the store open and permanently replace
strikers. Ewart also credibly testified that he was assigned
by Store Manager Hanks the duty of taking all incoming
phone calls from strikers who wanted to return to work,
and he was further instructed by Hanks that, in rehiring
returning strikers, he should advise them for their own
protection to send a registered letter of resignation to the
Union.5
B. Statements of Supervisors to Strikers
Attorney Cowell testified that at a union meeting held on
November 25, 1970, some of the members, whom he could
not identify, reported at this meeting that "Wards was
never going to sign a contract, that Wards was mad and
they were going to break the Union, and that the people
had already lost their jobs, had been permanently replaced
and there was nothing the Union could do for them."
Dean Payne joined the strike on September 29. He had
been employed in the service department as a TV
repairman and his supervisor was John Reed. On the
second night of the strike, Gretchen Girty, a supervisor in
the sales and audit department, and who was a good friend
of Payne's phoned him at his home. Gretchen Girty asked
Payne if he was coming back to work. He replied in the
negative, that he would not cross the picket line as he could
be fined. Payne further testified that Girty told him that if
he did not return to work in 3 days it was the store policy
to terminate if no explanation is given. Payne also testified
that Girty told him the Union was out and Wards would
never sign a contract with the Union-they didn't want the
Union when they started and they were glad they were out.
Girty further asked what Payne was doing about retire-
ment, savings, and insurance, and told him the Company
was going to replace everybody who did not return with
permanent replacements. Payne further testified that Girty
told him Wards would not sign a contract requiring all
employees to belong to the Union. Payne testified that he
reported this conversation with Girty to other striking
employees and on the following night at a union meeting
attended by the striking employees as well as Union
Representatives Bob O'Brien and Bob Koenig.
Gretchen Girty describes the phone conversation as
follows: Girty said "Dean, come on back to work" and he
says, "I can't Gretchen because the Union will fine me,"
and I told him, "Yes, they could; that Julie and Jim had
come to work but before they came to work, they had sent
a registered letter to the Union resigning from the Union.
Therefore, the Union could not fine them if they didn't
belong to the Union." Payne asked Girty if she thought it
would work and she said she knew that Wards would back
anybody that crossed the picket line to return to work.
Girty testified she told Payne if he didn't come to work
within 3 days, he would be permanently replaced and if he
were permanently replaced when the strike was over, he
wouldn't have a job to come to-and he could lose his
retirement, his leave, and his insurance. Girty testified
further that she told Payne that she didn't think Wards
would ever sign the contract the way it was presented.
Girty testified that Payne said he was afraid he would have
to stick with the Union. Then Girty testified that she cried
and told Payne she would think about his family at
Christmas and maybe send him a Christmas package.
Girty denied that she told Payne that Wards would not
sign a union contract, but she did concede that she told
Payne that she didn't think Wards could sign the union
contract with the 15-hour clause for part-time help. Girty
also denied that she told Payne that Wards did not want
the Union when it was started and that it was glad that
they were out now. Girty also denied that she told Payne it
was Wards' policy to terminate within 3 days. She testified
she had heard around the store that they were going to give
the strikers 3 days before they would replace them, and she
called Payne because he was her friend.
I find that the above-described telephone call made by
Girty to Payne was privileged under Section 8(c) of the Act
as the expression of views, argument, or opinion from one
good friend to another. Girty was not Payne's supervisor.
She had learned that Wards intended to operate the store
with permanent replacements and was passing this infor-
mation to her friend, and in the course of the discussion
expressed her views and opinions on the prospects of an
immediate contract settlement. It is clear that Girty had no
part in contract negotiations and Payne was fully aware
that she was expressing her own views on the matter. The
Respondent's determination to operate the store with
replacements during the strike is permissible and legitimate
under the Supreme Court's Mackay case; hence, Girty's
conduct in passing this information on to Payne was
proper and lawful under the circumstances. I do not credit
Payne's testimony that he was told by Girty that Wards
would never sign' a contract with the Union, that Wards
did not want the Union in there in the first place or now,
that they were out and they would never get in, or words to
that effect. Aside from the fact that this language does not
appear in Payne's affidavit given to an NLRB agent, it is
refuted by the physical facts which show that Respondent
and the Union have had contractual relations for years and
5 Since the Supreme Court decision in Allis Chalmers, 388 U S 175, picket lines have avoided union fines by resigning from the Union before
validating the right of unions to fine union members who cross a lawful crossing the picket line See Boeing Co, 185 NLRB 380
picket line, employee members of the Union who desire to cross union
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the further fact that subsequently on November 14,
1970, Wards was willing to agree to a union shop effective
January 1 , 1971, to cover the strike replacements as well as
present union members.
Pearl E. Sizemore was employed in the credit depart-
ment , and her supervisor was Mr . Fraser , the credit
manager . On September 28, 1970 , the day before the strike,
Fraser called Sizemore into his office and inquired of
Sizemore what she planned to do if the strike were called.
Sizemore told Fraser she would not cross the picket line.
Fraser then showed Sizemore the prepared paper stating in
substance that Wards would stand behind those people
that wanted to continue working while those who remained
away from work would be permanently replaced . Sizemore
told Fraser she would not cross the picket line. Sizemore
testified that Fraser then said to her, "You know, Pearl, the
company will not sign a contract . There 's no way."
Sizemore testified she reported this conversation with
Fraser to other striking employees on the picket line. Mrs.
Sizemore also testified that 3 or 4 days after the strike had
begun and while she was walking the picket line, she had
another conversation with Fraser as he was returning to
the store from lunch . Sizemore testified that Fraser
remarked , "It's kind of hot , why don'i you come inside the
store," to which she replied , "Why don' t you sign a
contract ," and Fraser replied , "There 's no way." Sizemore
further testified that about I week after the strike's
beginning , Fraser told her that he had just received word
from the store 's attorneys , and that if we wanted to come
back to work , they just had to send a certified letter to the
Union requesting a withdrawal . Again , according to
Sizemore , Fraser said , "The company would not sign the
Union contract , there 's no way." Sizemore testified that
she reported these conversations with Fraser at the first
union meeting after the strike 's commencement which was
held at the union hall , and was attended by all the striking
employees and the union officials . On cross-examination,
Sizemore conceded that the slip of paper shown to her by
Fraser on September 28 read as follows: "It is our
intention to keep the store open and running. We will
attempt to permanently replace strikers . We will not
abandon you as an employee of Montgomery Wards."
Sizemore conceded that when she went out on strike on
September 29, she did not strike because of any statements
that Mr . Fraser had made to her on September 28, nor was
she striking at any time because of any statement that
Fraser at arty time had made to her.
Fraser's version of his conversations with Sizemore are
as follows: Fraser testified that early in the day on
September 28, 1970, Mrs. Sizemore asked him what
position the Company would take regarding those employ-
ees who chose not to strike . Fraser replied he did not have
an answer , but he would try to find out. He went to Store
Manager Hanks ' office and spoke to Mr . Hanks, who gave
Fraser a small strip of paper that he had prepared for
distribution to staff members. Hanks told Fraser that the
language on the strip of paper was the Company 's position,
and that Fraser was to read it or show the paper to any
employee who asked . After receiving the strip of paper he
called Mrs. Sizemore into his office and handed it to her to
read, which she did. Fraser testified that having read it,
Sizemore inquired , "Does this mean that we are fired?"
And he replied that she would have to make her own
interpretation , that he had to go by the writing. Fraser
denied that when he talked to Sizemore on September 28,
that he said in words or effect, "You know, Pearl, the
company will not sign a Union contract . There is no way."
Fraser testified further that he had had previous conversa-
tions with Pearl Sizemore about 2 weeks before the strike
began when there was general conversation in the credit
office regarding the demands the Union was making on the
Company, at which time the question was then asked by
Pearl Sizemore if Fraser thought the Company would sign
a union contract . Fraser testified that he then answered
Sizemore, "Don't you think the company would be pretty
silly to sign a contract based on the Union 's demands?"
Fraser denied that in this conversation that he said the
Company would not sign a union contract . Fraser testified
that he saw Sizemore daily while she was on the picket line
and he usually exchanged pleasantries with her. He recalls
the incident above testified to by Sizemore about 2 weeks
after the strike started and he recalls the conversation as
follows: First Sizemore spoke the words "Boy it's hot," as
he came out the door and he said , "Gee, it's nice and cool
inside , why don't you all come back," and Sizemore
replied , "Why don't you settle the strike ," to which Fraser
replied , "Well, Pearl , you know I don't settle anything."
Pearl then said "Why don't you tell Freddie Hanks [the
store manager ] to settle it." Fraser testified he then
laughed and said , "You know , I don 't tell anyone to sign
anything ." Fraser denied that he told Sizemore that the
Company would never sign a union contract. Fraser
denied that he ever had a conversation with Sizemore after
the strike began in which anything was said about the
store's attorney and the judgment, or that if employees
wanted to come back to work , they just had to send a
certified letter to the Union requesting withdrawal.
There is little disagreement between Pearl Sizemore and
Fraser concerning their conversations . On the whole, I am
persuaded that the conversations were friendly in which
each was expressing his opinion of the merits of the
contract issues. Sizemore was saying , "Why doesn't the
company sign the contract ," Fraser replies "No way." I
credit Fraser 's denial that he ever told Sizemore that
Wards would never sign a contract with the Union . Fraser
played no significant part in the contract negotiations, and
was nothing more than an interested bystander . Concern-
ing the matter of withdrawal from the Union , I credit
Fraser 's denial that the remark was made. Moreover, I am
satisfied from the entire record, including conversations
that occurred in union meetings where fines were discussed
for those who crossed the picket line, that employees were
aware that union resignation was not a company-imposed
condition for returning to work but was a device to
preclude the possibility of a union fine for crossing the
picket line to return to work. I see nothing unlawful in the
Respondent 's advising employees for their own protection
against union fines to resign from the Union as a means of
preventing the imposition of a union fine. The fact that the
Respondent in its November 14, 1970, negotiation meeting
with the Union agreed to a union shop clause effective
January 1, 1971, is convincing evidence that the Respon-
MONTGOMERY WARD & CO
dent was not out to destroy the Union but was merely
exercising its right under the Supreme Court's Mackay
case, 304 U.S. 333, to keep its store in operation during a
strike.
I find that all of Fraser's remarks in conversation
between himself and Sizemore were privileged by Section
8(c) of the Act and did not violate Section 8(a)(1).
Robert W. Whitmore was employed in Wards' shoe
department. His supervisor was Don Paper, manager of the
shoe department. Whitmore and Paper were good friends.
On the Saturday before the September 29 strike, Whitmore
and Paper became involved in a discussion concerning the
possibility of a strike. Whitmore testified that he told Paper
that if the Union did go on strike, it could break Wards.
According to Whitmore, Paper replied that there were
stores in the Wards chain that had broken the Union. On
direct examination, Whitmore testified that Don Paper
said Wards would not sign a contract with the Union, and
that once the Union was out, it would never get back in
again. Whitmore testified he replied that Paper was wrong
and that he would find out if the Union did strike .6
On cross-examination by Respondent's counsel, Whit-
more conceded that he and Paper were good friends both
at work and socially and he does not remember who spoke
first in his conversation with Paper in the store. Whitmore
testified on cross-examination that he remembered Paper
saying that Wards would not sign a contract with the
Union as far as what the Union wanted, and he further
conceded on cross-examination that Paper did not tell him
that Wards would never sign a contract with the Union.
Donald E. Paper, no longer employed by Wards and
appearing as a witness for the Respondent, gives his
version of the conversation between himself and Whitmore
as follows: On this occasion before the strike, Whitmore
called Paper to the back of the store and asked to talk to
him. Whitmore had some papers about the union contract
proposal and he came to the page about wage rates where
the Union was asking for a rate of $3 50 per hour in the
shoe department. Paper testified he said to Whitmore,
"Bob, you are crazy; if you ever think they are going to
sign an agreement like that because it's approximately 50
cents an hour more than what I'm making." Whitmore
replied, according to Paper's testimony, that "We will just
have to see; we will just wait until Monday and see." And
Paper testified that he replied, "Well, that's fine but there
were instances in Wards that I had heard of certain stores
that they had gone on strike and they hadn't got back in "
Paper denied that he told Whitmore in that conversation
that if the Union once went out on strike in Redding that it
would never get back in. He also denied telling Whitmore
that Wards would not sign a contract with the Union for
the Wards' Redding store.
I find that under all the circumstances, the foregoing
conversation between Paper and Whitmore a few days
prior to the strike represented nothing more than an
exchange of views and opinions between friends, and was
privileged by Section 8(c) of the Act. I find that the
statements made by Paper during the course of the
conversation did not violate Section 8(a)(1) of the Act.
6 Whitmore was a member of the Union's employee negotiating
committee and he attended the September 24 union meeting where Wards'
597
Whitmore describes an incident on October 2, 1970,
involving himself, Don Paper, and Frances Rupert, a
striker who returned to work on the second day of the
strike. On this occasion, Whitmore, being disturbed
because Frances Rupert had crossed the picket line and
returned to work, followed her to her home to talk about it.
On the sidewalk in front of her home, Whitmore testified
he asked Rupert why she had returned to work, especially
since she had been a member of the negotiating committee
and was one of the first employees who wanted to go on
strike. Paper, who had driven Rupert home, was present
and participated in the conversation. Rupert explained to
Whitmore that some of Wards' personnel had contacted
her and asked her to come back to work. In this
conversation, Whitmore testified that Rupert said she
returned to work because certain of Wards' personnel had
notified her and told her that she could come back to work
at a higher paying job and that the strike would never be
settled anyway. Whitmore further testified that at this
point, Don Paper said, "She's right, the strike will never be
settled. Wards will never sign with you guys and it's going
to be a long walk. Why don't you come back to work too?"
Whitmore testified that he replied that he would never
cross the picket line, would never come back to work.
Whitmore further testified that Paper told him that he
could send in a resignation to the Union and be perfectly
able to work if they did settle afterwards. Whitmore
testified that on the following day he reported this sidewalk
conversation between himself, Paper, and Rupert to other
strikers picketing in his group.
Concerning this incident in front of Rupert's home,
Paper, who has since married Rupert, testified that on this
occasion he had driven to Rupert's home and had alighted
from his car in front of Rupert's apartment when
Whitmore drove up and was honking his horn to gain their
attention. Whitmore pulled up in front of Paper's parked
car. He was angry and upset. He approached them on the
sidewalk and immediately stuck his finger out and shook it
in Miss Rupert's face and said in an angry voice, "Fran,
you were one of the first ones to raise your hand at the
Union meeting to go out on strike and now before even the
first day of picketing is over, you are back at work." Paper
testified that he then stepped in between the two and said,
"Bob, I don't care how high she had her hand in the air or
what she had done, but she's back at work; and as far as
that goes, you can have your job back in the morning if
you want it." Paper testified that Whitmore replied, "I
wouldn't have that god-damn job back for anything. I'm
going to prove to you and to Wards that we are going to
get back in under our conditions." Paper testified "that was
the end of the conversation and Fran [Rupert] and I
turned around and started walking toward the house and
he left." Paper denied that at any time during this
conversation he told Whitmore the strike would never be
settled or that he said in substance that "Wards will never
sign with you guys."
I find the statements made by Paper to Whitmore in the
sidewalk conversation in front of Fran Rupert's apartment
were privileged by Section 8(c) of the Act. Paper was a
contract proposals were rejected Whitmore recalls that at that meeting,
comments were made by employees about the store going self-service
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
minor supervisor who had no part in the negotiations for a
contract. I credit Paper's denial that he told Whitmore the
strike would never be settled or that Wards would never
sign a contract with the Union. There is no evidence that
the Wards' negotiators were divulging their bargaining
strategy to Paper, a minor supervisor. Moreover the record
shows that on November 14, 1970, Wards reached
agreement on all outstanding issues with the Union,
including agreement for a union-shop clause in a new
agreement. The only issue which prevented agreement was
Wards' refusal to take back all the strikers including the
replaced strikers. I find therefore that Paper's remarks to
Whitmore during the sidewalk conversation in the presence
of Fran Rupert did not violate Section 8(a)(1) of the Act.
Dorothy Rouillard was employed at Wards in the
children's clothing department. Her supervisor was Electa
Foote, department manager of children's wear. Mrs.
Rouillard joined the strike on September 29. On September
30, Mrs. Foote came to her home in the evening and asked
her if she would return to work. Mrs. Rouillard testified
that Foote told her that there had been a meeting that day
and if she returned to work she would not be affected by
the Union; however, if Rouillard were to go to work some
place else that was a union shop at another time, she would
have to pay her initiation fees over again. Rouillard
testified that she told Foote she would not consider
crossing the picket line, and that Foote then told her, "This
is going to last a long time because we're going to break the
Union"-"I hold nothing against you; I'm just following
instructions." Rouillard testified that she replied, "That if
it lasted too long and I got tired of walking I would quit.
But I would not cross the line to go back to work."
Rouillard testified that Foote made no response other than
the fact that Wards was "going to break the Union and
that it would last a long time." Rouillard testified she
related this conversation to other striking employees the
next morning on the picket line Mrs. Rouillard also
testified that she and Foote were good friends and that
nothing said to her by Foote caused her to continue
striking
Mrs Foote conceded that she went to Mrs. Rouillard's
home and told her that she had come to ask her if she
would like to return to work through the picket line. She
testified that she told Rouillard that there had been a
management meeting and that Mr. Hanks had suggested
that "we ask them if they wanted to work." 7 Foote testified
that she did not ask other employees to return to work.
Mrs. Foote said Mrs. Rouillard told her she did not want
to go through the picket line after seeing some of the
women there who were supporting their families. Foote
testified that she told Rouillard "it would make no
difference to her whether she did or didn't; that it was her
right to come or not whichever she felt she wanted to do."
Foote testified further that something was said about
whether it would be a long strike or not and "I said it will
probably be because the one before in Redding was a long
strike." Foote denied that in this conversation with
7 Mrs Foote conceded on cross-examination that at a meeting Mr
Hanks said "he thought if we would like to have our employees come back,
he thought it would be all right if we asked them '
Rouillard she said in substance or effect "this is going to
last a long time because we are going to break the Union."
Foote said nothing to Rouillard about resigning from the
Union.
In the face of the undisputed facts that the Respondent
was willing to grant a union-shop clause for all employees
except a limited number of students after January 1, 1971,
I credit Foote's denial that she told Rouillard that Wards
was out to break the Union. I find that there was nothing
unlawful in Foote's asking Rouillard if she wanted to
return to work, in the absence of any evidence that it was
accompanied by promises of benefit or threats of reprisal. I
find that Foote's remarks to Rouillard were privileged by
Section 8(c) of the Act, and hence were not violative of
Section 8(a)(1) of the Act.
Alan Rink was employed in the automotive department
at Wards. He joined the strike on September 29. While
picketing in late October or early November 1970, he had a
conversation with George Rogers in front of the garden
shop. Rogers is supervisor of the garden shop. Rink
testified that Rogers told him that the Union had sold them
out; that Wards was not going to sign a contract with the
Union and that the strikers "were never getting back to
work." Rink testified he reported this conversation on that
same day to other pickets but does not remember who they
were.
Rogers testified that the conversation referred to by Rink
occurred in the spring of 1971 after the strike had been in
progress for 4 or 5 months. Rogers testified that he and
Rink were friends; that Rink walked up to the fence and
they exchanged greetings. Rogers testified that Rink, who
is a "tire buster," said, "Boy, you know, when we get back
to work-I am going to make $4.00 an hour," to which
Rogers replied, "Alan, think about it. You know, how can
they pay a tire buster $4.00 an hour. They would have to
sell every tire at $100 a piece in order to pay you guys to
stand around and do a job that's menial labor, so to
speak." Rogers testified he told Rink that he didn't think
the Company would sign that type of a contract where they
would pay a tire buster $4 an hour. Rogers further testified
that he didn't think the other unions were supporting the
Retail Clerks strike, because he had received telephone
calls from good union members where they would call him
and say, "Listen, I really need a roto-tiller, the one that's
advertised in the newspaper, but I can't come down and
cross the picket line," and Rogers went on to state to Rink,
"So I would either make arrangements to have it delivered
cash on delivery, or if they had an account at the store, I
would write up the credit form." Rogers denied that he told
Rink that the Union had sold the strikers out or that
Wards was not going to sign a contract with the Union, or
that the strikers were never going to get back to work.
Rogers testified that he remembers Rink asking him about
"this permanent replacement thing," to which Rogers
replied, "Alan, all I know is what you know permanent
replacements meant." Rogers testified he told Rink that
members of other unions were buying things from Wards
and he did not think they were supporting the Retail Clerks
strike at the store.
I credit Rogers' denial that he told Rink the Union had
sold the strikers out or that Wards was not going to sign a
MONTGOMERY WARD & CO.
contract with the Union, or that the strikers were never
going to get back to work. Rogers was a minor supervisor
who took no part in the contract negotiations or the
formation of Respondent's labor relations policy. His
conversation with Rink was a friendly noncoercive
exchange of views, argument, and opinion privileged by
Section 8(c) of the Act which included among other things
the fact that the Respondent had made permanent
replacements which are permissible under the Supreme
Court's Mackay doctrine. I therefore find that the
comments made by Rogers in the aforesaid conversation
with Rink did not violate Section 8(a)(1) of the Act.
Jack Littleton was a service technician under the
supervision of John Reed in the service department. He
joined the September 29 strike and picketed. Within 4 or 5
weeks after the start of the strike, Littleton was one of a
group of pickets consisting of himself, Herman Skillman,
Tim Howard, Bud Foster, and Bill Sealander, who were
engaged in a conversation with Credit Manager Fraser
outside the automotive shop. Littleton testified that Fraser
told the group that Wards was going to replace the strikers,
that the replacements were going to stay, and Wards was
not going to hire "any of the other people," but maybe in
the future selected people may come back but without a
union contract. Littleton testified further that Fraser said
that not all the people would be brought back, that there
was a group of people that they wanted back in, only
selected individuals would be brought back in. Littleton
testified further that in about the fourth or fifth week of the
strike, he had a conversation alone with Fraser on the
picket line in which the two talked about the idea of
permanent replacements, the legality of it, and Fraser came
back with the same basic idea that the strikers were going
to be permanently replaced and Wards was not going to
sign a contract. On cross-examination, Littleton recalled
that in the conversation near the automotive department
and the group there was something said about betting by
Herman Skillman. Skillman and Fraser were betting steak
dinners as to when the strikers would be back to work,
Skillman contending they would be back to work and have
a contract in 10 days and Fraser betting "no."
Fraser concedes he had a conversation with the
automotive department group earlier referred to above in
Littleton's testimony Fraser testified that the group
consisted of Herman Skillman, Bud Foster, Jack Littleton,
Bill Sealander, and possibly others. Fraser testified that on
this occasion as he came out of the door of auto service, the
group walked toward him, and someone in the group said,
"Hi, what's new?" and Fraser said, "Nothing, what's new
with you?" and they said "nothing." And Fraser testified
he said, "Well there's one new thing. Fred tells me you are
going to be in by the weekend"; and Herman Skillman
said, "That's right. We will be back in within the week, all
of us." Fraser testified that he replied, "Now you are
beginning to sound like Bud; he bet me a steak dinner on
it, and do you want to get in on the same deal?" Fraser
testified further that to the best of his recollection, Bud
Foster spoke up and said, "I'll take you on that," and
Fraser asked, "How about you, Herman?" and he
answered, "No, I don't have any money to bet, and we
laughed about the thing, and Bud Foster and I shook
599
hands and the bet was off." Fraser testified nothing else
was said in this conversation. He denied that anything was
said about the Company not taking certain people back
after the strike was over; nothing was said that the
Company would not sign any contract with the Union;
nothing was said that the Company would spend up to $1
million to break the Union; or that the Company would
break the Union.
Fraser testified that he recalled having one particular
conversation with Littleton regarding the strike matter
which he recalls took place possibly in the second week of
the strike on the parking lot outside auto service. He
believes Bob Shaw was also present at this conversation
but not certain. Fraser described this conversation with
Littleton as follows: After a casual greeting, Littleton
asked Fraser if he had heard that Littleton had been
replaced, had he heard that the store was going to
permanently replace the strikers. Fraser testified he told
Littleton he had no knowledge as to whether or not he had
been replaced. Littleton then said that he felt the store's
position on permanent replacements was illegal. Fraser
testified he told Littleton that it was his understanding that
the procedure was based on a court decision as the result of
a labor case. Littleton thanked him for the information and
said he would look into it further. Fraser testified he had
no recollection of saying directly or indirectly, and was
quite positive he did not say, that the Company was going
to go ahead and keep replacements and not hire any of the
other people, but maybe in the future selected people might
come back but without a union contract.
I find that the remarks made by Fraser were privileged
by Section 8(c) of the Act as mere statements of views,
argument, and opinion made in a friendly and noncoercive
atmosphere, which differed with the arguments, views, and
opinions expressed by the picketing strikers. Fraser was not
significantly involved in the contract negotiations and was
not determining the labor policy of the Respondent. I
therefore find that the remarks made by Fraser above set
out did not violate Section 8(a)(1) of the Act.
Littleton also testified that he had a conversation with
Marvin Wittner, department manager of the white goods in
November 1970, while he was picketing near the garden
shop. Littleton testified that after the usual greetings he
asked Wittner how things were going and Wittner replied,
. . real good because the month of October was $7000
ahead" of the previous October. Littleton testified further
that Wittner told him the strikers were wasting their time
carrying the picket signs, because, since a lot of the people
had been replaced inside, the Company didn't have to sign
the contract. Littleton testified that he replied, "I might as
well carry the picket sign since there was no chance to get
back in and Wittner replied, "No, I don't think that you
have been replaced yet." Littleton also testified that he had
another conversation with Wittner in the office of the
Department of Motor Vehicles in the first week of
February 1971, while they were standing in line to have
their automobile licenses renewed. According to Littleton's
testimony, Wittner told him at that time there wasn't going
to be a contract signed, and "we could get back into work
by signing a letter, send it to the Union stating that we
resigned and the Company would rehire us."
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wittner, called by the Respondent, testified that he had
two conversations with Littleton concerning the strike, but
that he frequently casually greeted him. Wittner places the
first conversation near the garden department about 3
weeks after the strike started. Wittner testified he wasjust
going out the door when Littleton asked if he could talk to
him. Wittner testified that Littleton told him that he had
heard that he had been fired, and Wittner replied he had
not been fired, in fact that none of them had been fired,
but the Company was making a few permanent replace-
ments. Wittner testified that he told Littleton, who was an
appliance repairman, that in fact nobody had been
replaced yet, because they were bunging in other service
managers from other stores into those positions to do the
service work the appliance repairmen normally do. Wittner
testified further that Littleton said he had heard business
was pretty bad and that he replied that "no, it wasn't. In
fact my department was good. I had about a $7,000
increase going for that month." Then, according to
Wittner's testimony, Bob Shaw walked up to greet them,
and Littleton then said that some of Wards' customers
were calling him to do some of Wards' service work, and
that he and Bob Shaw were thinking of going in together to
call some of Wards' customers and do their work. Wittner
testified he then told Littleton he couldn't understand why
he would do something like that after all that Mr. Hanks
had done for him, and Littleton replied he had to make a
living. Wittner testified further that Littleton said there
wouldn't be any problems if they signed the contract and
everybody could go back to work, and he replied, "there
would be no way that we could sign a contract for the
demands that the Union wanted." According to Wittner's
testimony, Littleton replied, "Well the only issue is the
student issue," and there wasn't any way that he could
come back to work. Wittner testified this was a friendly
conversation, and he denied that he told Littleton that the
Company would never sign a contract with the Union, but
would not sign on the issues the Union wanted.
Concerning the conversation between himself and
Littleton at the Motor Vehicle building, Wittner testified
they were both standing in line to get their license plates,
and the conversation took place between them outside the
building after they had purchased their licenses. Wittner
testified that Littleton told him he was wrong in what he
stood for and what he did in connection with the strike and
that he would get down on his hands and knees and beg for
his job back if there was any way they would take him
back. Wittner testified he told Littleton that he was man
enough to admit that sometimes a person makes mistakes,
but there was nothing he could do for him, but he would
again go back to Wards and let them know that Littleton
wanted to come back to work. Wittner testified he did talk
to John Reed, Littleton's supervisor, and he was told by
Reed that there were no positions open
Testifying further, Wittner denied that he said to
Littleton in the first conversation that employees were
wasting their time carrying picket signs because with the
replacements of the people inside, Wards did not have to
sign a contract, and he further denied that he told Littleton
8 On cross-examination, Wittner admitted he doesn't like the Union, and
he hopes the Union will lose the case
in the first conversation that he wouldn't have a chance of
coming back or that the Company would never sign a
contract with the Union.
Concerning the conversation with Littleton outside the
Motor Vehicle Department, Wittner, by his testimony,
denied that he told Littleton that there wasn 't going to be a
contract signed and he testified that there was nothing said
at that time as to whether or not a contract would or would
not be signed. Wittner also denied that in this same
conversation, he told Littleton that they could go back to
work by sending a letter to the Union stating they had
resigned and that the Company would rehire them.8
I credit Wittner's version of the two conversations he had
with Littleton which are described above. I credit Wittner's
testimony that the signing of a contract was not discussed
at the Motor Vehicle building or that anything was said
that Littleton could return to work by sending a letter of
resignation from the Union. I further credit Wittner's
denial that he told Littleton that the Company would never
sign a contract with the Union, and credit his testimony
that he told Littleton the Company would not sign the
contract the Union wanted. The essential facts disclose
that at the first conversation in October 1970, that the
appliance repairmen had not been replaced, but the work
was temporarily being performed by service managers
called in from other stores, whereas the second conversa-
tion which occurred in February 1971 was after the strike
had been in progress more than 4 months, with the
likelihood that replacements had by that date been made
and the conversation related to the desperate but hopeless
wish of Littleton to get his job back.
I find that in the two conversations between Littleton
and Wittner, described above, the statements of Wittner
were privileged by Section 8(c) of the Act and did not
violate Section 8(a)(1) of the Act.9
Littleton testified to a conversation he had on the picket
line with Paul Thode, who had responsibility for the
accounting functions at the Redding store. The conversa-
tion occurred on December 5, 1970, at the entrance of the
automotive shop. Littleton was picketing at the time.
Littleton testified that it was raining at the time and Thode
called him over to stand under the eaves and get out of the
rain . Present at the conversation were Bud Foster and Bill
Sealander. Littleton testified that when he approached, the
conversation was already in progress and Mr. Thode was
talking about some of the individuals and groups who
would not get back into work and Thode went on to state
that he believed the automotive group would be called
back eventually, but that he believed the repair department
where Littleton worked would never be called back.
Littleton testified further that Thode stated the reason was
that Reed, manager of the service department, had told
him that he was upset and concerned about the extremely
long coffeebreaks that the individuals were taking, not
filling out the proper route sheets, and selecting trace calls
to make their days a little easier. Littleton testified further
that Thode said that by rehiring a complete new group,
9 Littleton conceded that he was not sinking because of anything
Wittner or Fraser had said to him but because of the student issue
MONTGOMERY WARD & CO.
Reed could retrain them and make these people to his
liking.io Littleton testified he made no response to this, and
then Thode went on further to state that the cost of the
strike was greatly upon the shoulders of the Umon and all
they had to do was wait for the Union to go broke, and
when this occurred , the strike would be over and the
Company would have won. Littleton testified he made no
reply to this statement by Thode but dust turned and left.
Littleton testified further that he attended a union
meeting a few days after the strike had started, and he
recalls that , during this meeting, striking employees made
statements regarding things that they were told by their
supervisors . Littleton did not recall the identity of the
persons making the statements other than the fact they
were striking employees. Littleton testified that statements
he heard made were that supervisors had stated to striking
employees that the Company was never going to sign, that
the store was going self-service.
Thode, the store 's accountant and auditor, has no
responsibility in connection with labor relation matters
and did not participate in contract negotiations. Thode
conceded he had a conversation with Service Technician
Jack Littleton some time in December 1970 underneath
one of the overhead doors in the automotive service
department According to Thode, Littleton , Bill Sealander,
and Herman Skillman, who had been picketing, ap-
proached him to come out of the rain. Thode testified that
at first there was general conversation about the rainy
weather, and then Jack Littleton told Thode that he
understood Wards was losing a great deal of money
because of the strike , and Thode said "that was true but he
could take solace in the fact that it was also costing the
Union a great deal of money ." Thode testified further that
Littleton then asked how Thode knew how much it was
costing the Union , and Thode told him that he was in
charge of the payroll figures and knew the approximate
amount of take-home pay that the strikers were getting,
and he understood that they were getting take -home pay to
walk the picket line and he understood the cost presently to
the Union would be about $5 ,000 a week . Thode testified
further that Littleton said that some of the picketers would
never be hired by Wards and that Thode then told
Littleton that that wasn ' t true and Littleton said "Yes, it
was," for instance , the servicemen would never come back
and Thode said that that wasn ' t true because the Company
had not hired replacements in auto service and if the strike
were settled they would automatically come back because
no permanent replacements had been hired. Thode
testified further that Littleton then said that excluding
them , the auto repairs , "the group you worked for would
never be hired back," and Thode testified that he
acknowledged that the Company had hired permanent
replacements for most of the people in "repair service,"
and why would Wards want to hire them back. Thode
testified that Littleton then asked what Thode meant by
that type of a question and Thode replied that it was his
understanding that at one time Littleton and several other
repair servicemen were caught by Mr. Reed at the Royal
Inn, at the coffee shop , down the street from Wards having
10 Littleton conceded on cross-examination that Hanks , the store
manager , phoned him some time in October or November 1970 and offered
601
a mass coffeebreak , which was something they weren't
supposed to be doing . Thode testified further that he told
Littleton that the replacements were hitting company
standards for jobs completed per day, and that the unit in
November for the first time was making money, which was
something it had never done with the persons who had
gone on strike. Thode testified that Littleton then got a
little upset and left . Thode , by his testimony , denied that
anything was said about whether the Company would or
would not sign a contract.
Thode denied that at any time during that conversation
he told Littleton that there were some of the groups that
would not get back into the store . Thode further denied
that at any time during this conversation did he tell
Littleton that he believed that the employees in the repair
department would never be called back in, and denied also
that at any time during that conversation , he in substance
or effect told Littleton that the Company was rehiring or
hiring a complete new group that could be retrained, and
that these people would be to the liking of the Company.
Thode conceded by his testimony that he did say "that we
were hiring permanent replacements , but I didn't say
anything about training them to the liking of the company,
or anything like that," and Thode acknowledged that he
told Littleton "that permanent replacements in repair
service had been doing a better job than the strikers."
Further testifying , Thode denied that during that conversa-
tion , in talking about the losses and the expense of the
strike, he said in substance or effect that all the Company
had to do was wait for the Umon to go broke and that
when the Union did go broke , the strike would be over and
the Company would have won. Thode further denied that
other than the $5 ,000 and $7,000 conversation , nothing was
said about the duration of the strike or the Union losing
the strike because of lack of financial resources. Thode
testified that Skillman , a mechanic in auto service, was
present during this conversation with Littleton , and other
than this conversation with Littleton in Skillman's pres-
ence, or than casual greetings , Thode testified he never
engaged in any prolonged conversation with Skillman.
Thode denied that in this conversation in the presence of
Littleton , Foster, and Sealander that he said that not all the
people would get theirjobs back and Thode further denied
that he said anything about people coming back other than
the comment about the service repair department doing a
better job than the strikers had done. Testifying further,
Thode denied that at any time during this conversation did
he refer to how much money the Company would spend
with respect to the strike, and further denied that, at any
time during that conversation, he said in substance or
effect that the Company could spend $1 million if it had to
in order to keep from signing a contract and so outlast the
Union.
Littleton 's and Thode 's versions of this conversation on
this occasion hardly differ in substance . I credit Thode's
testimony that he told Littleton that the service department
employees had already been replaced , thus precluding the
immediate reinstatement of the service technicians whom
their supervisor, Reed, had caught taking a coffeebreak
him his job back, and he declined it, because he had heard that John Reed
said he wouldn't last
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sometime before the strike, contrary to an existing
company rule. I find that Thode's remarks on this occasion
were privileged by Section 8(c) of the Act.
Joan Horne, called as a witness by the General Counsel,
was employed at the time of the hearing as stock control
supervisor. She was employed as a stock control clerk in
September 1970. She joined the strike on September 29 but
returned to work on the following day. She was anticipat-
ing being promoted to a supervisory position upon the
retirement of Mrs. Ray, then stock control supervisor, who
retired in March 1971.
Mrs. Home testified that, in the weekend previous to
the strike, she had a conversation with Personnel Manager
Ewart in his office in which he read to her a statement
which said something about permanent replacements.
After Ewart read the statement, Mrs. Home asked him
what it was supposed to mean. She also read the written
statement. Mrs. Horne asked if this meant there was going
to be a strike and Ewart replied that this was all he was at
liberty to say. Mrs. Home testified there was no further
conversation. Mrs. Home denied that Mr. Ewart told her
that she would not get the supervisory job if she went on
strike. Mrs. Horne testified that on the second day of the
strike Merchandise Manager Gelegan phoned her at her
home and asked her if she wanted to come back to work.
Mrs. Home said yes, but she could not afford the fines
imposed by the Union" and Gelegan said something
about it being a free country and that anything she joined
she could resign from. Home asked Gelegan how she could
resign and he said to just write a letter to the Union and
resign. She resigned on that same day and came to work
the next morning. Home testified that Gelegan said
nothing about a supervisory job at Wards.
I find in accordance with Mrs. Home's testimony that
she had been promised Mrs. Ray's supervisory position
long before the strike and that neither Gelegan, Ewart, or
anyone else from management promised her the supervi-
sor's job if she would return to work, or threatened that she
would not receive it if she went on strike. It is fair to
conclude that one of the factors influencing Mrs. Home to
return to work was her expectation that a promotion would
be forthcoming, but this expectation was based on
statements made to her long before the strike and were in
no way related to the strike. It is also reasonable to infer
that Mrs. Home was concerned that her possible replace-
11 Home testified that at a union meeting someone asked what they were
going to do about people who crossed the picket line and went back to work
and Financial Secretary Bob Koenig said they would be fined $500 and a
day's pay for every day worked.
12 Mrs Home testified that in a conversation before the strike with Enid
Proulx, Don Charles Smith, and other employees around the negotiating
table prior to the strike concerning a possible strike , she told them she had
talked to Ewart and that he had said or read this letter "that we would be
permanently replaced if we went on strike and Blanche was reassuring me
that we would be back in the store before Thanksgiving because of the
Christmas rush and then she told me that I was being selfish because I
would be a supervisor after a short time and that I wouldn't belong to the
Union, that I was thinking only of myself Then I told Blanche, I could just
see Mr Ewart giving me a supervisor's job after I had been out on strike."
13 The letter is dated October 16, 1970, and appears in the record as G C
Exh. 10 It reads as follows
Dear [Name ]
A number of employees have asked questions about their employment
rights at the end of the current strike Although I thought I had already
ment if she remained on strike would nullify her chances
for the promotion which she was anticipating.12
I find that there is a failure of proof that Joan Home was
threatened by either Gelegan or Ewart or anyone else
representing Wards' management that she would not
receive a promotion if she participated in the strike.
Paragraph VII(b) of the complaint is therefore dismissed.
Robert Shaw was employed as a service technician in the
service department under Supervisor John Reed. He was a
member of the Union's negotiating committee and a strike
captain. He was present with a group of pickets near the
automotive service entrance of Wards consisting of
himself, Littleton, and Skillman. Shaw testified that while
they were picketing, Credit Manager Fraser approached
them and greeted them. Then, according to Shaw, Fraser
told the pickets they would be permanently replaced if they
didn't return to their jobs which were still open. Shaw also
testified that Fraser told them if they did go back to work,
it would be an open shop and that Wards was going to
break the Union; that Wards "had more money to fight us
than we did to fight them, that we would go broke long
before Montgomery Ward would." Shaw further testified
Fraser said that Montgomery Ward was out to break the
Union. Shaw testified that the next conversation with
Fraser was about the time Mr. Hanks issued the letter to
the replacements in the store guaranteeing them a
permanent job. Shaw testified that Fraser explained to
them that each of the people that had been hired to
permanently replace those on the picket line had been
given this letter 13 and there was no way they could lose
their jobs no matter what the outcome of the strike. Shaw
further testified that the discussion "went into how much it
was costing the Union to operate," and that the "Chicago
store would spend one million dollars if they had to keep
the strike, you know, to break the strikers." On cross-
examination, Shaw testified that he had said something
about the strike costing the Union more money than it was
costing Wards, and that it was possible that the other
employees who were present at the conversation with
Fraser said that the Company was losing a lot of money
because of the strike, and in the context of those
statements, Fraser said, "Well the company can lose more
than the Union or words to that effect." Shaw conceded on
cross-examination that he and Fraser were on speaking
made our position quite clear, I am writing this letter so that there can
be no doubt in anyone's mind as to the Company position.
You have been hired as a permanent replacement of an employee on
strike at our store. The law on this issue is very clear You have
permanently replaced an employee engaged in an economic strike, and
you have an absolute right to stay on your job as long as you want.
There is absolutely no legal way that the striking employees or Union
can take that job away from you without the Company's consent. I give
you my personal assurance that the Company will not consent to
bumping you off your job . Montgomery Ward intends to protect your
rights.
I hope this clears up any confusion which may have existed. If,
however, there is still any doubt in your mind , please do not hesitate to
come into my office and see me.
Sincerely yours,
/s/ F. C. Hanks
Fred Hanks
Store Manager
MONTGOMERY WARD & CO. 603
terms and he did not consider the statement by Fraser to
be a threat.14
Concerning his conversation with Shaw, or in his
presence, Fraser denied that he said Wards was going to
break the Union, or that Wards had more money to fight
the Union than the Union had to fight Wards, or that the
Union would go broke long before Wards would. Fraser
also denied that in his conversation with Shaw he said
anything by way of explanation about Hanks' letter
dealing with permanent replacements, and testified he
never had a copy of such a letter. Fraser also denied that
he told Shaw that all the people who had been hired
permanently to replace those on the picket line had been
given a copy of this letter. Fraser further denied that he
told Shaw that there was no way that the permanent
replacements could lose their jobs no matter what the
outcome of the strike was.
I credit Shaw's testimony concerning the substance of his
conversation in which he was present, among others, with
Fraser. I find that discussions were had as to the cost of the
strike to the Union and to the Respondent, but I do not
credit Shaw's testimony that Fraser said the Respondent
would only sign an open-shop contract. In this connection,
it is noted that Shaw made no such statement in his pretrial
written statement. Additionally the Respondent's contract
negotiations at no time during negotiations proposed an
open shop, but in fact offered on November 14, 1970, a
union shop covering all employees except to a few limited
short-hour full-time students.
Fraser was the Respondent's credit manager and played
no significant role in negotiating the collective-bargaining
agreement with the Union. His discussions with Shaw and
others such as Skillman, Littleton, and Sealander were on a
friendly basis, and the discussions in large part were
initiated by the pickets. The comments and remarks by
Fraser constituted nothing more than the expression of
opinions and views privileged by Section 8(c) of the Act.
Remarks made by Fraser concerning the replacement of
strikers were nothing more than statements of the Respon-
dent's legal right to keep its business in operation by the
hiring of permanent replacements under the Supreme
Court's Mackay decision. Remarks made by the pickets
and by Fraser as to the costs to the contending parties
ensuing from the strike and the willingness of parties to
undergo costs to win a strike situation give recognition to
the fact that the contending parties in a strike situation are
locked in an economic battle to compel the opposing party
to come to their terms.15 No one contends that the issues
which sparked the strike were illegal; it is conceded that
the strike was economic; and that being so both Union and
Respondent were free to undergo the expense necessary to
achieve their collective-bargaining objectives. Therefore,
statements made by Fraser that Wards was prepared to
14 Shaw conceded on cross-examination that his written pretrial
statement does not mention anything about Wards' spending $ 1 million, or
that the Company would only sign an open-shop contract
15 As the Supreme Court said in N L R B v Insurance Agents
Internationa l Union, AFL-CIO, 361 U S 477 (1960), 489
The presence of economic weapons in reserve , and their actual exercise
on occasion by the parties, is part and parcel of the system that the
Wagner and Taft-Hartley Acts have recognized Abstract logical
analysis might find inconsistency between the command of the statute
spend a million dollars constituted nothing more than a
statement of the Respondent's legal right to achieve its
contract demands which no one asserts were illegal or
made in bad faith. I would therefore find that the remarks
made by Fraser to Shaw, or in his presence, did not violate
Section 8(a)(1) of the Act.
Shaw further testified that he had a conversation with
Customer Service Manager John Reed in October 1970.
On this occasion, according to Shaw, Reed was driving
home in a service truck and he stopped near the
automotive service department and the two started talking
about the strike. Shaw testified that Reed mentioned he
needed and had openings for three or four service men,
that he had ads in the newspaper at the time, and "if we
didn't get back to work, we would be permanently replaced
and that some already had been." Shaw went on to testify
that Reed said what a "bad deal it was, us going out on
strike," and he said that "the store would spend any
amount of money to break this Union, that under no
circumstances would the store go Union again if they ever
hired anybody back, or when this was over with, they
would go open shop."
In contradiction of Shaw's testimony, Reed testified that
he customarily drove Wards' service truck to go to and
from work through the picket line. Reed testified he spoke
to some of the pickets, stating "we were friends." Reed
testified that after the strike began, other than greeting
each other, he spoke to Shaw only on one occasion when
Shaw asked him as he was leaving the lot if he could have
some equipment in a truck. Testifying for the Respondent,
Reed denied that he ever had a conversation with Shaw
after the strike where Reed told Shaw that he had three or
four openings, or that a couple of employees would not be
hired under any circumstances, and he denied ever making
any statement to Shaw that the store would spend any
amount of money to break the strike or words to that
effect. Reed further denied making any statements to Shaw
to the effect that the store would not go Union again, it
would go open shop. He further denied telling Shaw that
the strike was creating a terrible economic condition in the
area, and denied making a statement to Shaw to the effect
that the Chicago office of Wards would spend any amount
of money necessary to break the Union or break the strike.
I credit Shaw's testimony concerning Reed' s statements
about the availability of jobs and the possibility of the
service technicians being permanently replaced if they did
not return to work. The record fully establishes that Store
Manager Hanks had instituted a policy of replacing
strikers with permanent replacements, but I do not credit
Shaw's testimony that Reed told him Wards was willing to
spend any amount of money to break the Union, or that
they were going open shop. I make this credibility
determination because the surrounding circumstances
to negotiate toward an agreement in good faith and the legitimacy of
the use of economic weapons, frequently having the most serious effect
upon individual workers and productive enterprises, to induce one
party to come to the terms desired by the other But the truth of the
matter is that at the present statutory stage of our national labor
relations policy, the two factors-necessity for good-faith bargaining
between parties , and the availability of economic pressure devices to
each to make the other party incline to agree on one's terms- exist side
by side
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disclose that the Respondent continued to recognize the
Union and bargain with it on request and in fact in the
November 14, 1970, negotiations offered a union-shop
clause which would require all employees, except a few
full-time students, to join the Union after January 1, 1971.
Herman Skillman is employed in Wards' auto service
department. He joined the strike on September 29.
Skillman credibly testified that on September 28, the day
preceding the strike, Merchandise Manager Gelegan
approached him and asked if he was going to cross the
picket line. Skillman replied he would not. Then Gelegan
told Skillman if he did not cross the picket line and return
to work he would be permanently replaced. Skillman
testified that approximately 2 weeks after the strike began,
he had his first conversation with Credit Manager Fraser.
This conversation occurred in front of the auto service
building while Skillman was picketing along with other
pickets, Foster and Sealander, who were present in the
conversation. Skillman testified that on this occasion, he
told Fraser that he would be back to work "real shortly"
and Fraser replied, "No way." Skillman testified that after
this conversation, he had a number of other conversations
with Fraser. Skillman testified that on another occasion, in
the presence of Bill Sealander and Bud Foster, Fraser said
that if there was anybody to come back to work, it would
be only those people that the Company wanted back, that
the Company did not want some of the people back, that
they were bad workers. Skillman testified that he replied
that he believed if "we came back, it would be all together"
and Fraser said it would not be; and a steak dinner was
bet, Skillman betting that they would all come back and
Fraser that they would not.16 Concerning this conversa-
tion, Fraser testified that present in this group of pickets
were Herman Skillman, Bud Foster, Jack Littleton, and
Bill Sealander and possibly others Fraser testified that on
this occasion, as he came out of the door of auto service,
the group of pickets walked toward him, and someone in
the group said, "Hi, what's new?" to which Fraser replied
"Nothing." Fraser testified he then said, "Well, there's one
new thing; Fred tells me you are going to be in by the
weekend", and, Fraser testified, Herman Skillman said,
"That's right We will be within the week, all of us;" and
Fraser testified that he replied, "Now you are beginning to
sound like Bud. He bet me a steak dinner on it, and do you
want to get in on the same deal?" Fraser testified further
that to the best of his recollection, it was not Herman
Skillman who took him up on the bet; it was Bud Foster
who said, according to Fraser's testimony, "I'll take you up
on that"; and Fraser testified he then asked, "How about
you Herman?" and Skillman replied, "No, I don't have any
money to bet." Then Fraser testified, "We all laughed
about the thing, and Bud Foster and I shook hands and the
bet was off " Fraser testified that nothing else was said in
the conversation. He denied that anything was said about
the Company not taking certain people back after the
16 On cross-examination, Skillman conceded that when Fraser said some
of the employees would not be coming back, it is possible that he connected
that up with a statement of permanent replacements Concerning the steak
bet, the strikers present were saying they would be back within a week and
Fraser was saying, "No you won't " Skillman also conceded on cross that
the bet was that the strikers would all return in a group, or none would
return
strike was over. He denied that anything was said that the
Company would not sign any contract with the Union. He
also denied that anything was said that the Company
would spend up to $1 million to break the Union, or that
the Company would make the Union go broke and
therefore lose the strike.
I find that the aforesaid conversation between Fraser
and the group of pickets, including among others, Herman
Skillman, was a friendly conversation in which the pickets,
on one hand, contended that the Union would win the
strike shortly, and they would all be back to work, whereas
Fraser took the opposing position that the strike would not
be over shortly and that not everybody would be returned
to work, and there was talk of steak dinner bets, much as
one would bet on the outcome of a sporting event. The
conversation was had in a friendly and noncoercive
atmosphere and the remarks made by Fraser, who was not
controlling Wards' labor relations policy or participating in
contract negotiations, were privileged within the meaning
of Section 8(c) of the Act. I credit Fraser's denial that he
said that the Company would not sign any contract with
the Union or that the Company would spend $1 million to
break the Union. I make this credibility determination
because the undisputed facts are that the Company did not
withdraw recognition of the Union, bargained with it, and
offered it a union shop effective January 1, 1971, for all
employees except a limited amount of full-time students
who would work short hours for Wards.
Laverne Nutt was employed by Wards as a clerk in the
children's department. Her department manager was
Electa Foote. Mrs. Nutt joined the strike on September 29
and she picketed. Mrs. Nutt testified that in a conversation
she had with her supervisor, Mrs. Foote, sometime before
the strike, she asked Mrs. Foote if she could get off to
attend a union negotiating meeting as she was a member of
the union bargaining committee. Mrs. Foote gave her
permission to go and then, according to Mrs. Nutt's
testimony, Mrs. Foote said, "If you guys go out on strike,
the store is out to go self-service " Nutt testified that she
replied that the store could not run self-service and Mrs.
Foote said, "Oh yes it could, we would bring the check-
stands back in and put them at the stores and we would
run it." Mrs. Nutt testified that when she asked Foote who
would wait on the customers, Foote replied, "We [meaning
the department heads] would." Foote also said the
warehouse people would be called in to stock the counters.
Nutt also testified that Foote also said that if the store
doesn't do a better business than it is now doing, the store
could close and "we could all be out of work." 17
Mrs. Nutt testified she had a similar conversation with
Supervisor Georgia Wood who heads departments 16 and
18, on September 12, 1970, before the strike. Nutt relieved
Mrs. Wood in the yardage while she was gone to attend a
management meeting. Upon Wood's return to her depart-
ment, she thanked Nutt for taking care of the department
11 Mrs Nutt conceded that she had previously made a written statement
on November 25, 1970, to the Union as follows "Mrs Foote told me about
a month before the strike that management told them in a meeting that the
store would go self-service if wages became too high, that in order to cut
costs, the company would turn the store to self-service, with only
department heads to handle the customers "
MONTGOMERY WARD & CO. 605
in her absence and inquired how the last contract
negotiating went. Nutt said there was nothing new, nothing
had changed. Nutt testified that Wood then told her that if
the Union called a strike, the store might go self-service,
and "I said, well I don't think so, Georgia, but if it does,
you would have an awful lot of work to do." Mrs. Nutt
testified that Mrs. Wood then said, "Well, if business
doesn't pick up, the store might even close and then we
would all be out of work." Nutt testified that she reported
to the union membership at a union meeting held before
the strike her conversation with Electa Foote.
As department manager of the children's and girls'
department Electa Foote had only one employee, Dorothy
Rouillard, under her supervision. Foote identified Laverne
Nutt as a part-time employee who was working under
direction immediately before the strike. Foote recalls that
she did have a conversation with Laverne Nutt which took
place in her department about 3 weeks before the strike.
Foote testified that Nutt asked what the store would do if
the employees went out on strike, and Foote replied that
probably she "would be the only one in the department.
The department managers would work; we would take care
of the customers as far as I knew we would be working
alone." Foote testified that Nutt said that she had heard
talk of self-service, and she wanted to know what it would
be like if they had self-service, and Foote replied she didn't
exactly know, she "supposed they would set up registers
and people would take their merchandise there, but I
didn't know whether they would or not." Mrs. Foote
testified that she did not remember anything about Nutt
talking about going to a meeting. Foote further denied that
she told Nutt, "If you guys go out on strike, the store is out
to go self-service." Foote testified that Nutt raised the
question about self-service, and she recalls no discussion
about stocking of merchandise after the subject of self-
service was raised. Foote denied that in her conversation
with Nutt, she said to her in substance or effect that, "If
the store doesn't do a better business than we are doing
now, the store can close and we could all be out of work."
Foote testified that she was quite positive that she did not
tell Mrs. Nutt that if they went out on strike, that the store
was going to go self-service.
Georgia Wood, department manager of the yardage and
knitting department, testified that Laverne Nutt worked in
her department only to relieve on breaks or lunch hour.
Mrs. Wood testified that discussions about self-service
went on generally in the store about 2 months before the
strike, but she had no recollection of discussions with Nutt
about self-service. Wood denied that she ever told Mrs.
Nutt, that if the Union called a strike the store might go
self-service. Wood also denied that she ever told Nutt
within a month or two before the strike that "if business
did not pick up, they might even close and then we would
be all out of a job."
It is not disputed that rumors of Wards going self-service
had been a subject of coffeebreak discussions for a number
of years before the strike. It is clear that both Electa Foote
and Georgia Wood were minor supervisors, with only one
or two employees under their supervision. They had no
voice in the labor relations policy of the Respondent's store
in Redding and they were not involved in the contract
negotiation. It is clear that both Foote and Wood in their
respective conversations with Nutt were voicing only their
uninformed speculation on what would happen in the
event of a strike, and it is established without dispute that
their guesses as to what would occur in the event of a strike
were wrong. Thus, the Respondent's strike policy was to
continue operating with permanent replacements, whereas
Electa Foote hazarded the guess that the store would just
operate with its department heads, whereas, according to
Nutt's testimony, Georgia Wood hazarded the guess that
the store would go self-service. I find that the remarks
made by both Foote and Wood to Nutt on separate
occasions some weeks before the advent of the strike were
made in a noncoercive posture, and were privileged as the
expression of views, arguments, or opinion privileged by
Section 8(c) of the Act.
Mrs. Grace LeClair worked in Wards' TV and stereo
department before the strike. She joined the stake on
September 29. Mrs. LeClair phoned Operations Manager
Ewart in November 1970 and asked to be returned to
work. Mrs. LeClair testified that Mr. Ewart said that it was
out of his hands, that he had to talk to the lawyer,
Chevalier, and promised to call her back. According to
Mrs. LeClair's testimony, Ewart phoned her a day or two
later and told her that she could come back to work on a
part-time job in the service department if she would send a
registered letter to the Union resigning membership and
having no affiliation with the Union. Mrs. LeClair testified
she decided not to return to the part-time job offered her.
Mrs. LeClair testified that Mr. Ewart did not give her any
reason why she should resign from the Union. Mrs.
LeClair testified that she picketed only 1 day, and she
conceded that in the union meeting in September there was
talk concerning being fined for crossing the picket line.
On cross-examination, Mrs. LeClair testified that, in the
phone conversations offering her a part-time job, Ewart
said that she "must send a registered letter to the Union
resigning membership and have no union affiliation in
order to come across the line to come to work." She
testified she was quite sure nothing was said about
protecting herself because of the possibility of union fines.
She testified further, however, that she was somewhat
concerned that, if she came back to work, she might be
fined. She testified that she didn't really know that if one
sends a letter of resignation to the Union, then under the
law, the Union could not fine one.
Ewart conceded by his testimony that he did receive a
telephone call from Mrs. LeClair in November 1970. On
one occasion, when she called, Mrs. LeClair told Ewart
that she understood that she had been replaced, but that
she was still interested in coming to work. Ewart told Mrs.
LeClair it was true that she had been permanently replaced
and he would have to discuss it with Mr. Hanks and that
he would call her again. Ewart testified that about 2 or 3
days later he called Mrs. LeClair and told her again that
she had been permanently replaced as a commission
saleswoman, but that he had a part-time position as
telephone solicitor and service clerk. Mrs. LeClair replied
she would have to think it over. Mr. Ewart also testified
that if Mrs. LeClair decided to come to work, "that for her
own protection she would have to send a letter of
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resignation to the Umon and it would have to be sent by
registered mail." Mr. Ewart testified he did not tell Mrs.
LeClair that as a condition for her returning to work that
she could have no affiliation with the Union.
I credit the testimony of Mr. Ewart that he did not tell
Mrs. LeClair that as a condition of reemployment she must
have no affiliation with the Union . I find that Ewart
suggested LeClair's resignation from the Union for her
own protection, having in mind that she could be fined for
crossing the Union 's picket line . Moreover , upon the basis
of the discussions which went on in Mrs. LeClair's
presence in the union meeting, it must have been apparent
to her that her crossing the Union 's picket line as a union
member could cause her to be fined. Under all the
circumstances , I am satisfied and I find that Ewart did not
precondition reemployment upon resignation from the
Union, but merely suggested it for the employee's own
protection against union fines
Anna Cuyler in September 1970 was employed by Wards
as a clerk in the service department . Her supervisor was
John Reed. Cuyler joined the strike on September 29 and
she' picketed. Cuyler testified she had a conversation with
Credit Manager James Fraser on the first day of the strike
at Grant's coffee shop . Present at this conversation were, in
addition to Fraser and herself , also Enid Proulx, Joan
Horne, Fran Rupert, and Marv Wittner, appliance depart-
ment manager. Cuyler testified that she was picketing at
the time and she and the other nonsupervisory employees
above mentioned joined Fraser and Wittner for coffee.
Cuyler testified that Fraser did almost all of the talking
except for a few comments that she herself made, and
nobody else said anything. Cuyler testified that Enid
Proulx asked if Fraser was going to buy coffee and Fraser
replied that "we would have to buy our own coffee from
now on and that we had better give good thought to our
finances, and we went over to Grant's." There at coffee,
Cuyler testified Fraser asked "what we hoped to gain by
walking the picket line; the strike would not be settled and
what were we planning to do financially ." Cuyler testified
further that Fraser said that the Company had no intention
of settling the strike. Cuyler testified that she interrupted
Fraser to say that the Company had offered them very
little, and Fraser replied that he was very concerned about
the people that really needed their jobs, that was his
concern, and that the people who wanted theirjobs should
get off the picket line and go right back to work. Cuyler
further testified that Fraser said , concerning replacements,
that "we should get off the picket line and get back to work
because the store was not planning to settle the strike, and
the people would be replaced and out of work." Cuyler
testified she mentioned these remarks made by Fraser to
other pickets on the picket line. Cuyler conceded on cross-
examination that she, Enid Proulx, Joan Horne , and Fran
Rupert were supervised by John Reed and that Fraser had
no supervisory authority over her work.
Fraser's version of the coffee shop conversation differs
from Cuyler's version. On this occasion of the first
afternoon of the strike , Fraser testified , he came out of the
company store entrance where there were many pickets,
among them, Enid Proulx, Fran Rupert, Joan Horne, Anna
Cuyler, and several more. They greeted each other and,
Fraser testified , he said , "Boy it 's hot out," and the pickets
said, "Yeah it sure is " and Fraser said , "But it 's sure nice
and cold inside ." Then , according to Fraser , Enid Proulx
said, "Are you going to buy us coffee?" and he said, "I
guess so"; so he held the door open and said , "Let's go,"
and the group laughed and said , "You know we can't go in
there. But why don't you buy us coffee at Grant's." So they
proceeded to Grant's coffee shop and ordered coffee.
Fraser said the people who accompanied him to Grant's
coffee shop were Enid Proulx , Fran Rupert , Joan Home,
and Anna Cuyler. Fraser testified he really didn't recall
much of the conversation because it was dust a lot of
laughing about black feet and hot weather. Fraser testified
that the only comment he can recall making directly
regarding the strike was that he was in sympathy with the
individuals who provided support for their families,
because he felt this was tough on them. Fraser testified that
he had no recollection of and did not believe he told the
group that they would have to buy their own coffee, and he
had no recollection of telling the group that now that they
were on strike, they had better be careful about their
finances . Fraser denied asking any of the group what they
hoped to gain by walking the picket line. Fraser further
denied telling any of the group that the stnke would not be
settled, or asking them what they were planning to do
financially . Fraser further testified he was quite sure that
he did not say that the Company had no intention of
settling the strike . Fraser also denied that he said that the
people who really needed their jobs, and people who
wanted a job should get off the picket line and get right
back to work. Fraser testified that the conversation at the
coffeebreak was hilarious, it was a joke, and the only
serious remark was a parting remark where Fraser testified
he said seriously that he felt sympathetic to those who were
the sole support of their families, and possibly would suffer
financially.
Enid Proulx, a rank -and-file employee , called by the
Respondent , testified in corroboration of Fraser 's testimo-
ny concerning the conversation in Grant 's coffee shop. She
was among the girls who had coffee with Fraser. Proulx
testified that before they went over to have coffee, Joan
Home said , "Oh it 's sure hot out," and Mr . Fraser
answered, "Come on in, it's cold in here." Proulx testified
that Fraser was just joking, laughing, and having a good
time. Proulx testified that in the coffee shop , Fraser said he
"hated to see a strike, that nobody benefits by a strike, and
it was just a general conversation . We were all just
laughing." Proulx testified further that Fraser did not say
anything about the fact that they had to start worrying
about finances , and he did not say directly or indirectly
that the strike would not be settled . On cross-examination,
Proulx testified that she returned to work the second day of
the strike with Fran Rupert and Joan Horne, because she
was concerned about losing the income as she has children
to support.
I credit Fraser's denial that he told the group the strike
would not be settled or that the Company had no intention
of settling the strike . Fraser had no authority in directing
Wards' labor relations policy. Moreover subsequent events
showed that there was agreement on all issues including the
economic and union -security contract issues, and the only
MONTGOMERY WARD & CO 607
issue that prevented settlement was the Company's refusal
to immediately take back permanently replaced strikers. I
do, however, credit Cuyler's testimony that Fraser told the
group that the people who wanted theirjobs should get off
the picket line and return to work before they were
replaced. I make this credibility resolution on the basis of
the fact that the Respondent's intention to continue
operating with permanent replacements was instituted and
announced to many employees by management represent-
atives on the day preceding the strike and also in
succeeding days after the strike began.
I find that the statements made by Fraser in Grant's
coffee shop were privileged by Section 8(c) of the Act. I
also find that the conduct of Fraser in urging the people
who needed their jobs to return to work before they were
replaced was no more than a statement of the Company's
right to continue operations with permanent replacements
under the Supreme Court's Mackay doctrine. I therefore
conclude that Fraser's remarks in Grant's coffee shop did
,not violate Section 8(a)(1) of the Act.
Tim Howard, appearing as a witness for the General
Counsel, is presently employed in Wards' automotive
department as a tire mounter. He joined the September 29,
1970, strike and remained on strike for 5 months. He also
picketed. Howard testified that about a month after the
strike started, while he was picketing, he had a conversa-
tion with Garden Shop Supervisor George Rogers outside
the garden shop. On direct examination, Howard testified
that the two of them were discussing the strike, and Rogers
said that he believed that he didn't think Wards would ever
sign another union contract, or sign a contract with the
Union. On cross-examination, however, Howard affirmed
that what Rogers said was in effect that he didn't think that
the Company would ever sign a contract for what the
Union was asking for, and not that the Company would
never sign a contract. On cross, Howard also affirmed that
he understood Rogers to be saying that Rogers didn't think
the Company was ever going to agree to what the Union is
asking for.
It is undisputed that Rogers was not Howard's supervi-
sor and exercised no authority over him. It also is
established that Rogers was a minor supervisor who had no
authority in establishing company policy in the matter of
its labor relations and he took no part in its contract
negotiations with the Union. I find that Rogers' remarks to
Howard were mere expressions of opinion privileged under
Section 8(c) of the Act and contained neither promise of
benefit or threat of reprisal. I therefore find that Rogers'
remarks to Howard did not violate Section 8(a)(1) of the
Act.18
Dorene Medina, a witness for the General Counsel, was
the assistant fashion manager in the fashion department,
and the fashion manager was Ada Heidrich. Medina
testified that about a week before the strike started, she
had a conversation with Mrs. Heidrich in Wards' coffee
18 Rogers testified he had no recollection of having a conversation with
Tim Howard concerning the strike, but he did have a conversation with
Herman Skillman in the presence of Tim Howard and Bud Foster next to
the garden shop about 3 days after the strike started Rogers testified that
Skillman opened the conversation by saying, "We are going to have this
company on its knees in 7 days," and Rogers testified he replied, "Well, I
don't see how you can say that you are going to have the company on its
shop in the presence of two other women whose names she
cannot remember. Medina testified that Heidrich stated in
the coffee shop that if the Union persisted in its demands,
the store would go self-service. Mrs. Medina joined the
September 29 strike and picketed, and she conceded that
Mrs Heidrich's above remarks to her had no bearing on
her reasons for going on strike. Medina testified that when
the store first opened there was some talk about it going
self-service, but nothing since until the incident she related
above. Mrs. Medina testified that she would be in charge
of the fashion department in the absence of Mrs. Heidrich.
Mrs. Heidrich, called as a witness for the Respondent,
testified that talk about the store going self-service had
been going on for a year or so during coffeebreaks and
lunch periods. Heidrich could not recall any conversation
with Medina in September 1970 about self-service. Heid-
rich also testified that she could recall no conversations in
the month or so before the strike in the presence of Medina
where the Union or contract negotiations were discussed.
Heidrich denied that she ever told Medina that if the
Union persisted in its demands, that the store would go
self-service. Heidrich conceded, however, that she and
Medina had been talking about the new store opening in
Merced and, "We could possibly do the same thing, the
department managers would have to do it." Heidrich
conceded that she did say "that we girls would have to do
it if they did go on strike, namely the department managers
would have to do the work," at a coffeebreak in the
presence of five or six girls at the coffee table which might
have included Medina.
Again, it is noted that Heidrich was a very minor
supervisor who obviously had no say in the Company's
labor relations policy or in collective-bargaining negotia-
tions. It is clear that the coffee table statements that if the
strike occurred the department manager would have to do
the work and in a sense the store would become self-service
was nothing more than her unfounded opinion or guess, a
guess no more correct than the guesses of other people in
the store. As a matter of fact, her guess was wrong, as it
turned out, that Wards' policy was not to go self-service or
have the department managers do all the work, to the
contrary the store policy was to continue operations with
permanent replacements for the strikers. It is noted that
these coffee talks were nothing more than friendly
discussions and idle gossip and were privileged by Section
8(c) of the Act. They were carried out in a noncoercive
context. I therefore find that Mrs. Heidrich's remarks
made in the presence of Medina did not violate Section
8(a)(1) of the Act.
Lamar (Bud) Thompson was employed at Wards in
September 1970 as a commission salesman in the appliance
section. His department manager was Marvin Wittner
Thompson was on vacation at the start of the strike on
September 29, but he joined it on his return from vacation
knees in 7 days How are you going to do that?" Skillman said, "Well, they
told us down at the Union that this store cannot take a strike , for in 7 days
management is going to be begging us to sign a contract " Rogers testified
he replied, "Herm, you have got to be dizzy to imagine that " Rogers then
offered to bet $50 and the winner would collect in 8 days And then Rogers
testified, "We all laughed and that was the end of the conversation " Rogers
denied that he said Wards would never sign a contract
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on October 3. He was a member of the Union 's negotiating
committee.
After Thompson's return from his vacation , he testified
he had a conversation with Credit Manager Fraser about
October 10, in the Thrifty Drug Store shortly after
Thompson arrived that morning for picket duty. Thomp-
son testified that, after he and Fraser exchanged pleasant-
ries, Fraser told him that Wards was not going to settle,
and he said , "Some of you fellows are getting a little bit
older and you might have a rough time getting a job .. .
perhaps not you because you have something on the ball."
Thompson testified further that Fraser said that Wards was
prepared to spend $ 1 million to break the strike and that
they had redlined the Redding store and were prepared to
sit it out. Thompson testified he told Fraser that the strike
would be settled and the Company would "take us all
back," and Fraser said "No," and then Fraser proposed
the standard steak dinner wager. Thompson testified
further that Fraser said the Company had no intention of
taking us all back but did not specify who they were not
going to take back . On cross-examination , Thompson
repeated the same testimony as above and added that
Fraser told him the Company was prepared to spend $1
million to break the strike and that the Union would soon
go broke, and that Wards had redlined the Redding store
and intended to sit it out Thompson conceded on cross-
examination that he heard from several people on the
picket line that the Company was hiring permanent
replacements.
Fraser testified that he had a conversation about the
strike with Thompson after Thompson' s return from
vacation , but he places it while he was about to drive his
car out of the lot to go to the post office. He says he
stopped his car at a traffic lane and Thompson was right
there and greeted him and then leaned in the window of
the car to speak to Fraser . Fraser testified that after he and
Thompson had greeted one another , Thompson said, "I
hope this thing has not come between us , because I still
consider you a very good personal friend ," and Fraser
replied , "I don't see why it should . I did not feel it was the
responsibility of any individual." Fraser testified further
that Thompson said that he heard he had been permanent-
ly replaced, and the word of this was going around the
store; and Fraser said , "Bud, you couldn 't prove it by me.
I've been too busy trying to keep up with my own end of
the business ." Fraser testified further that Thompson then
said , "Well, no matter anyhow, because with the loss this
outfit is taking, and them being so chintzy , we will be in
there by the end of the week ." Fraser testified he replied,
"You have got to be kidding. This is a billion dollar
corporation , and this operation to them is like a pea in the
ocean ." Fraser further testified that "Thompson then said
he would bet me $100 that they would be back in by the
end of the week , and Fraser replied , `Don't be silly, whose
got $100 to spend on something like that? However, if you
want to put your money where your mouth is, I'll take you
up on a steak dinner,' and we parted on that deal . He took
me up on a steak dinner bet." Fraser denied that during
this conversation he told Thompson that the store was not
going to settle. He further denied that he said anything
about some of the fellows getting a little bit older and
might have a rough time getting a job. He also denied
saying, "Well, maybe not you because you have something
on the ball," but he did acknowledge that he always held
Thompson in high esteem . Fraser also denied saying to
Thompson about some of the others were not spring
chickens on the picket line. Fraser also demed that in this
conversation he said directly or indirectly that Wards was
preparing to spend $1 million to break the Union. Fraser
also denied that in this conversation with Thompson he
said that Wards had redlined the Redding store, and was
preparing to sit it out. Fraser further denied that in this
conversation Thompson said to him in substance or effect
that he felt that if the strike was settled, that Wards would
take all the strikers back , and that Fraser m reply said,
"No." Fraser further testified that "We didn ' t talk at
anytime about them all coming back ." Fraser further
denied that he at any time during this conversation told
Thompson that Wards had no intention of taking all the
strikers back.
Comparing Thompson's and Fraser's versions of their
conversations , I find that in essence Thompson was
contending that Wards would capitulate to the Union's
demands within a week and the strikers would all be back
to work, whereas Fraser was taking the position that Wards
would not capitulate and was willing to bet a steak dinner
to back his position I credit Thompson's testimony that
Fraser told him the Company was prepared to spend $1
million to break the strike and I also credit Fraser 's denial
that he told Thompson that Wards was preparing to spend
$1 million to break the Union. I also credit Thompson's
testimony that Fraser told him the Company had no
intention of taking all the strikers back and that some of
the older fellows would have a rough time getting a job.
Reiterating what I have pointed out previously in this
decision , Fraser did not determine Wards' labor relations
policy and was not involved in the contract negotiations.
He was aware , as everyone else was, that Wards was hiring
permanent replacements , and pointed out to Thompson
the risks of replacements, and under the circumstances, it is
highly probable, and I find , that Fraser told Thompson
that not all the strikers would return , an opinion expressed
on the basis of the Company's commitment to the
replacements that they would be permanent. I find that the
conversation was initiated by Thompson , who held and
expressed the strong opinion that Wards would quickly
capitulate to the Union's demands and take back all the
strikers, whereas Fraser's opinion to the contrary was
expressed by him . I find that Fraser's remarks about
Wards' willingness to spend $1 million to break the strike
was an expressed opinion concerning Wards' determina-
tion to prevail in its collective-bargaining position . The law
recognizes that the strike is per se an economic battle
between contending forces, and in many cases involves
losses on both sides running into millions of dollars, and it
is not uncommon for the parties to reach agreement rather
than suffer further financial loss. I find that Fraser's
remarks to Thompson constituted the expression of views,
arguments , and opinion within the meaning of Section 8(c)
of the Act and were not violative of Section 8(a)(1) of the
Act.
Thompson testified he also had a conversation with his
MONTGOMERY WARD & CO. 609
supervisor, Marvin Wittner, relating to contract negotia-
tions and the strike in the second week of the strike.
Thompson testified he was picketing at the time. The
discussion began with talk about each other's hunting
experiences. Then, according to Thompson's testimony,
Wittner asked him what he had said during contract
negotiations, and Thompson replied nothing that he knew
of and asked why, and Wtttner replied, "Well you are
being widely quoted in the store and they are discussing
what you had to say." Thompson testified further that
Wittner also said, "If you ever get back in, it's going to be
hell for you because they are gunning for you because of
your attitude in negotiations." Thompson testified he
replied that he asked Wittner what he had said that
offended. On cross-examination, Thompson conceded that
Wittner told him in this conversation that he had not been
replaced and that he had asked him to come back to work.
Thompson testified on cross-examination that he told
Wittner that he would be delighted to return to work when
the picket line was down.19 Thompson conceded that he
did not remain out on strike for anything that Wittner or
Fraser had said to him.
Marvin Wittner, appliance department manager and
Thompson's supervisor, testified that he had three conver-
sations with Thompson concerning the strike after it had
been in progress. Wittner places the first conversation in
the second week of the strike. Wittner testified when he
drove his truck to work that morning, Bud Thompson, who
was picketing, approached his truck and engaged him in a
conversation. They first talked about hunting and Thomp-
son's vacation. Wittner testified he told Thompson that he
had not had a chance to go hunting and could not because
he was working the appliance department by himself and
that he needed Thompson to come back to work.
According to Wittner, Thompson replied that he could not
come back to work because of what he stood for and
believed in, and because he was on the negotiating
committee, and he couldn't understand what Hanks and
Chevalier had against him. Wittner testified he replied,
"Well, Bud, I told you I need you to come back to work; I
can't run the department myself-if he didn't, I would
have to make a permanent replacement in his position."
Wittner testified that Thompson then said, "Are you firing
me?" and I said, "No, I'm not firing you-I need you to
come back to work."
Wittner testified to a second conversation he had with
Thompson about a week later while he was on his way to
work in his truck and was in the area of Thrifty Drug.
Thompson, who was picketing, said, according to Wittner's
testimony, "I have heard that you have fired me." Wittner
testified he told Thompson he had not fired him, that his
job was still open and he needed him back, and Thompson
replied that he had heard that when he comes back to
work, that the managers were going to make it so rough on
them that they'd wish they hadn't come back. Wittner
testified he assured Thompson that the two of them could
always get along and were frank with each other, and
Thompson agreed. Wittner testified he again asked
Thompson if he was ready to come back to work and
Thompson refused. Wittner testified he told Thompson
that he couldn't run the department by himself and he was
going to have to make a replacement if Thompson did not
come back. Wtttner testified that he had a third conversa-
tion with Thompson a week later in which Thompson
inquired if he had been replaced yet and Wtttner told him
he had not been, his job was still open. Thompson again
told Wittner he could not come back, because he could not
let his fellow employees down, although he was aware that
he could avoid a union fine by resigning from the Union.
Wtttner told Thompson he couldn't hold off any longer,
that he was going to have to replace him. Wittner testified
he replaced Thompson 2 days later with another man.
Wittner denied that he told Thompson, "If you ever get
back in, it's going to be hell for you because we are
gunning for you because of your attitude." Wittner also
denied that there was any reference to negotiations in any
of his three conversations with Thompson. Wittner also
testified that Chevalier's and Hanks' names were men-
tioned only in their first conversation when Thompson said
he wanted to know what Chevalier had against him
because he was on the negotiating committee.
I fully credit Wittner's testimony that he had three
conversations with Thompson about the strike and that the
substance of the conversation was Wittner's entreaties to
Thompson to return to work and Thompson's steadfast
refusal, even in the face of his knowledge that there was the
risk of replacement. Wittner's entreaties to Thompson to
return to work contained neither promise of benefit or
threat of reprisal. Wittner's statement to Thompson in his
third conversation that he could hold off no longer, that he
was going to have to replace him was not a threat of
reprisal but a statement of the Respondent's legal right to
continue operations by replacements in the face of a strike.
I therefore find that Wittner's statements to Thompson did
not violate Section 8(a)(1) of the Act.
William Sealander, called as a witness by the General
Counsel, was employed as a mechanic in Wards' automo-
tive department. He joined the strike on September 29 and
he returned to work while the strike was in progress on
March 12, 1971.
Sealander testified that about March 1, 1971, he called
Operating Manager Ewart and asked to come back to
work. Ewart replied that he would be called when he was
needed. Sealander testified that about 2 weeks later, Ewart
called him at his home and asked him to come to work and
"to make sure I resigned from the Union." Sealander
mailed a registered letter to the Union containing his
resignation. Sealander testified that on September 28, 1970,
the day before the strike, Merchandise Manager Gelegan
talked to the men in the automotive shop about the
impending strike. According to Sealander's testimony,
Gelegan was reading from a piece of paper and he said we
would be replaced if we didn't resign from the Union.
On cross-examination, Sealander, in contradiction of his
previous testimony, admitted that in preparing a written
statement for the Union, he stated that he was told that, if
he went on strike, he would be replaced and that he said
nothing in that statement about resigning from the Union.
19 Thompson was discharged during the strike for alleged misconduct on
the picket line
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sealander admitted he had previously given a statement to
Respondent's counsel that Gelegan never told him or
anyone in his presence that the strikers would be
permanently replaced if they did not resign their member-
ship in the Union. Sealander also admitted on cross-
examination that he answered "No," to the question put by
Respondent's counsel, "Did Ewart ever tell you or instruct
you to resign from the Union as a condition of returning to
work?" Sealander conceded on cross-examination that
nobody from the Company asked him to produce the post
office receipt showing that he had sent a registered letter to
the Union. Sealander also conceded on cross-examination
that he was present at union meetings when fines were
discussed if the union member came through the picket
line, and fines were discussed in amounts of $500 plus
wages in the presence of Union President Robert Koenig.
Sealander testified he understood from attending union
meetings that a person might be fined $500, plus whatever
he earned if he came through the picket line. Sealander
conceded on cross-examination that he was aware that the
Union could not fine him if he sent a registered letter of
resignation before returning to work, and he conceded he
sent in the letter of resignation to the Union to avoid being
fined. On redirect, on being shown the affidavit he gave to
the Board agent, Sealander testified the statement re-
freshed his memory that it was said by Mr. Gelegan that
"we would be permanently replaced if we did not resign
from the Union."
Gelegan denied that he told Sealander and the other
employees in the automotive department on September 28,
the day before the strike, that they would be replaced if
they did not resign from the Union. Gelegan testified he
merely read from a slip of paper as follows:
It is our intention to keep this store open and running.
We will attempt to permanently replace strikers. We
will not abandon you as far as being an employee of
Montgomery Ward.
Concerning the telephone call by Ewart telling Sealander
he could return to work, Ewart testified that he told
Sealander that for his own protection he should send a
letter of resignation to the Union by registered mail, but he
never made any attempt to learn whether or not such a
letter was sent by Sealander.
I am satisfied from the foregoing record evidence,
including the self-contradictions of Sealander, that there is
no credible evidence that Sealander was told by a
supervisor of the Respondent that he would be replaced if
he did not resign from the Umon or that his return to work
would be permitted contingent on his resignation from the
Union. I credit the testimony of Gelegan and Ewart in
connection with their conversations with or statements
made to Sealander, and, accordingly, allegations of 8(a)(1)
violation on the complaint relating to this phase of the case
are without merit and are to be dismissed.
Michael McCarthy was employed by Wards in Septem-
ber 1970 as a salesman in the home improvements
department. His supervisor was Vince McGunnihan.
McCarthy joined the strike on September 29, 1970, and he
also picketed. He never returned to work, although he was
offered a job by Store Manager Hanks in October 1971.
McCarthy testified he had a conversation with Store
Controller Paul Thode in the third or fourth week of
October 1970 at the west entrance of Wards' store next to
Thrifty Drug, while he and another striker named Bob
Husted were picketing, and Husted was present at the
conversation. McCarthy testified that Thode came out of
the Wards' store with an envelope to be mailed by
registered mail to the Umon about insurance. After
discussing the insurance matter for a time , McCarthy
testified that Thode told him and Husted that it was
costing the Union a lot of money every week for the strike,
that the Union was spending more money on the picket
line than the store was paying payroll in the store, and that
Thode didn't see how we could last very long, "and that
Wards was willing to stay out for two years and spend
$1,000,000 to break the Union, and the old man would
never sign the union contract." 20
Thode's account of the conversation in McCarthy's
presence is as follows: Thode recalls that in the first 2
weeks of the strike he was going to mail a registered letter
to the Union concerning insurance . As he left the store, he
had a conversation with one of the pickets named Bob
Husted. Some other pickets, including McCarthy were
around. At first he talked to Husted about fishing in the
river, and in response to Husted's question where he was
going, Thode told him he was going down to the post office
to return the insurance checks to the Union as he had been
told that the strikers would not be eligible under the
Company plan for health coverage. Thode testified he
pointed out to Husted that he ought to check and make
sure he was going to have insurance coverage. Thode
testified that ended the conversation and Thode left to mail
the letter. Thode testified that Michael McCarthy had
nothing to say during that conversation. Thode testified
that in this conversation no one, neither he nor anyone
else, said that the old man would never sign a union
contract, and he denies that there was any discussion in
that conversation as to whether a contract with the Umon
would or would not be executed or signed. Thode also
denied that any time during that conversation did he, in
substance or effect, state that the store was willing to spend
2 years and a million dollars to break the Union. Thode
credibly testified that he had no responsibility in connec-
tion with labor relations matters, and had not participated
in contract negotiations, and that he had no responsibility
or authority as to how much money the Company might be
willing to spend in connection with the strike.
I credit McCarthy's testimony that Thode told him and
Husted that it was costing the Union a lot of money every
week for the strike, that the Union was spending more
money on the picket line than the store was paying payroll
in the store, and that Thode didn't see how they could last
very long and that Wards was willing to stay out for 2 years
and spend $1 million to break the Union. I make this
credibility determination because McCarthy's testimony is
to some extent corroborated by the testimony of Littleton
20 McCarthy conceded on cross-examination that he did not remain on conversation was friendly McCarthy also conceded that Store Manager
strike because of Thode's remarks, but remained on strike for the contract Hanks offered him his job back in October 1971 and he declined it, telling
that the union members thought was acceptable McCarthy also testified the Hanks he was already working elsewhere
MONTGOMERY WARD & CO. 611
concerning similar remarks made to him by Thode.
Additionally, McCarthy was frank in conceding that his
conversation with Thode was a friendly conversation, and
that nothing Thode said caused him to remain on strike,
but that he was remaining on strike for a contract
acceptable to the Union . McCarthy was also frank in
conceding that he might have told Thode that the strike
wouldn't last very long.
I find that Thode's remarks were made in a noncoercive
context and were merely the expression of an opinion as to
how long the strike would last , McCarthy stating it would
be short and Thode on the other hand stating that Wards
was willing to spend $1 million to sustain its contract
demands. It is clear that Thode had no voice in Wards'
labor relations or in its contract negotiations , and in its
context his remark did not constitute a threat of reprisal
but merely a statement of Wards' economic power to win
the strike . I find that McCarthy 's remarks were privileged
by Section 8(c) of the Act.
William F. Swegart, called as a witness for the General
Counsel , is the father of Diana Swegart, one of the strikers
who had worked under the supervision of Gretchen Girty,
a sale audit supervisor at Wards' Redding store , and who
joined the strike on September 29. Mr . Swegart testified
that a day or two after the strike started , he received a
telephone call at his home from Gretchen Girty, his
daughter 's supervisor , asking to talk to his daughter,
Diana. Swegart offered to take a message. He testified that
Girty told him that if Diana didn't report to work by the
following morning, then she wouldn't be able to come back
to work, that she would be replaced by a woman employee
as some of them already had been replaced by permanent
employees and then even if the strike was settled she
wouldn ' t have a job to come back to. Swegart testified
further that Girty told him his daughter had been doing a
good job and was in line for a promotion ; that if she didn't
cross the picket line and report to work , that even though
at a future date, if she would ever go to work in a Wards'
store, she would never be eligible for promotion . Swegart
testified he told Girty that he didn ' t think his daughter
would be going to work because he was in the insurance
business and wrote insurance on a lot of union members
and it might have repercussions on him and some of his
customer relations and he didn ' t want his daughter
crossing the picket line. Swegart testified further that he
told Girty that if his daughter were to cross the picket line,
then it was possible that she would be barred from union
membership, and then at a later date, if the strike was
settled , his daughter wouldn't be able to go to work
because they wouldn ' t let her become a union member.
Swegart testified further that Girty replied that if his
daughter would send a letter of resignation to the Union,
then there wouldn ' t be anything the Union could do to her,
and also said that it didn't make any difference anyway
because the store was not going to be Union any longer,
and that this was the beginning of the program that they
were going to be nonunion throughout the country.
Swegart testified that he repeated this telephone conversa-
tion to his daughter that evening.
Swegart testified on cross-examination that a year
elapsed between the date he received the telephone call
from Girty and the date he made a written statement to the
Union at the suggestion of Koenig . Swegart also testified
on cross-examination that his attention had been called to
the case from an article he had read in the San Francisco
paper after he had moved to San Francisco , to the effect
that striking employees at Wards might receive some
backpay from Wards , so he called the article to his
daughter 's attention and contacted the Union . Swegart
conceded on cross-examination that there was nothing in
his signed statement that he had given to the Union to the
effect that Girty had said to him over the phone that it was
the policy of Wards to get rid of unions all over the country
and this was the stepping off point . He further conceded
that there is nothing in his signed statement to the Union
to the effect that Girty told him his daughter could never
be promoted if she didn ' t come back to work.
Gretchen Girty, appearing as a witness for the Respon-
dent, concedes she had been attempting to contact Diana
Swegart by phone at her home and that she had a phone
conversation with Diana 's father who answered the phone.
Girty testified that after identifying herself to Swegart, she
told him that she was calling to find out if Diana was
coming back to work , and if she is, she wanted to tell
Diana to send a letter of resignation to the Union before
she came to work so that the Union could not fine her.
Girty testified further that Swegart told her he didn 't think
Diana would be coming back to work , stating as a reason
that he was an insurance salesman , selling insurance to a
lot of people that belong to the Union , and that he thought
his job was more important than that little job Diana had
with Wards . Girty testified further that she told Swegart
that she was sorry as Diana was a good worker and that
"we liked her and we wanted to keep her job for her in case
she was going to come back , otherwise we were going to
replace her if she didn ' t come back to work next morning."
Swegart 's reply was that Diana would not be back to work,
and she said thank you and hung up. Girty testified further
that she called Diana's house because they were hiring
people and Diana had previously told her she didn't want
to go out on strike , and for that reason she wanted to
contact her to find out if she was coming back to work.
Girty denied that in her telephone conversation with
Swegart she said anything to him about a promotion for his
daughter or that she said to Swegart in substance or effect
that if Diana did not come back to work , that even at a
future date, if she would ever go to work at another Wards'
store, she would never be eligible for promotion . Girty also
denied that she said anything during the phone conversa-
tion that it wouldn 't make any difference because the store
was not going to be union any longer . Girty also denied
that anything was said by her that this was the beginning of
a program at Wards to be nonunion throughout the
country, and further denied that she said to Swegart that
this was a start to get rid of unions at all Wards stores and
this was the stepping off point.
Girty testified credibly that she has never had any
responsibility in formulating Wards' labor policies and she
had no voice as to whether or not Diana would be
promoted or whether she would be permanently replaced.
Girty admitted on cross-examination that during the first
week of the strike that Ewart, operations manager, said
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Company was going to give people 3 days to come
back to work before they would be permanently replaced.
Girty also conceded on cross-examination that she told
Swegart that the Company would have to replace Diana
the next day if she didn't come to work. She testified she
told Swegart this because "we had to have help and it is
common knowledge that one person cannot run the cash
office by himself."
I fully credit Gretchen Girty's version of her phone
conversation with Swegart, and I discredit those portions
of Swegart's testimony which are denied by Girty or are
inconsistent with Girty's testimony. Swegart testified to
several matters that were not contained in his statement to
the Union; and, moreover, his bias is admitted because of
his dealings with union people and his desire to get some
backpay for his daughter. Additionally, it was more than a
year after his telephone conversation with Girty that he
attempted to recall the conversation when he gave the
signed statement to the Union at its request on October 13,
1971.
I find, therefore, that Girty's telephone call amounted to
a request that Diana return to work as she was needed,
otherwise she would be replaced. The statements made by
Girty in this phone call conform to the Respondent's right
to operate its business with replacements for strikers who
do not return to work. Girty's statements in this telephone
conversation, I find, did not violate Section 8(a)(1) of the
Act.
C. Analysis and Conclusionary Findings
It is admitted on the record, and there is no claim to the
contrary, that the September 29, 1970, strike was an
economic strike called by the Union to attain certain
benefits in wages, hours, and working conditions and in
opposition to Respondent's contract demand excluding
students21 from the union-shop clause. The General
Counsel's complaint that the September 29 strike was
converted into an unfair labor practice strike by the
remarks of supervisors made as specified in the complaint
are not supported by the evidence. I have already found
that such remarks as were made by supervisors to rank-
and-file employees were privileged by Section 8(c) of the
Act as the expressing of views, argument, and opinion.
Additionally, there is an absence of evidence that the strike
was in any manner precipitated by, or prolonged by, the
remarks of the supervisors made either before or after the
strike.
Roland C. Davis, one of the attorneys representing the
Union in contract negotiations, testified that he had no
understanding or information that the employees on
September 29, 1970, were striking because of any threats or
21 Students worked less than 15 hours per week and were full-time
students in high school or college
22 One handbill distributed by the Union during the strike read as
follows
O N S T R I K E
PLEASE Do NOT SHOP MONTGOMERY WARDS
We, the employees of the Montgomery Ward Store of Redding,
after several meetings with the Ward's Company, find ourselves unable
to reach a contract agreement
The issues are Contract Rates, Job Security and Fringe Benefits
Therefore, the Company has left us no recourse but to take strike
8(a)(1) conduct by Wards' supervisors, and this was not
discussed in his presence on September 28, when he came
back to report to the committee that the two major issues
were wages and the student question. Additionally, Robert
Koenig, the Union's financial secretary and chief executive
officer, conceded by his testimony that on September 28,
1970, the consensus of the Union's negotiating committee
to strike was not based on any threats of Respondent's
supervisors but upon the basis of Attorney Davis's report
to the committee of his failure to resolve the outstanding
economic contractual issues. Koenig further conceded by
his testimony that as of November 14, 1970, the strike was
still being conducted to get the contract terms resolved;
and that was the only reason for the strike going on to
November 14. Koenig also conceded that at the November
14, 1970, negotiating meeting, the Union was taking the
position that all strikers had to come back to work or none
of them would come back. Moreover, the literature
distributed by the Union during the first few weeks of the
strike publicized that the Union was striking over contract
issues.22
None of the Union's public statements referred to or
alleged unfair labor practices by the Respondent or its
supervisors as causing or prolonging the strike Additional-
ly, the Union's Work Stoppage Report to the U. S.
Department of Labor dated October 24, 1970, described
the major issues in dispute as "wages and fob security,"
and no claim was made that the work stoppage or labor
dispute was based on unfair labor practices. Moreover,
almost without exception, those strikers who were asked
the question, conceded that they were not striking on
account of any of the remarks made by supervisors.
It was after the November 14, 1970, bargaining session
where agreement was reached on all contract issues, but
where the Respondent refused to immediately take back
permanently replaced strikers, instead offering to place
them on a preferential hiring list, that the Union for the
first time claimed the strike to be an unfair labor practice
strike in charges filed with the Board in this case on
November 20, 1970.
I am convinced and I find that the utterances made by
Wards' supervisors were privileged by Section 8(c) and did
not violate Section 8(a)(1) of the Act. Furthermore,
assuming arguendo that some of the supervisors' remarks
were violative of Section 8(a)(1) of the Act, there is a total
absence of a causal connection between the remarks and
the strike or that such supervisor remarks converted the
strike to an unfair labor practice strike or prolonged the
strike. The fact that a company commits unfair labor
practices does not automatically convert an economic
strike into an unfair labor practice strike. It must be proved
to the Board's satisfaction that unfair labor practices
action to protect our working conditions
Please support us by not shopping at Montgomery Wards until our
dispute is settled
Thank you
The Striking Employees of
Montgomery Ward
R C I A Local #1364,
AFL-CIO
Sanctioned by Five Counties
Central Labor Council
AFL-CIO
MONTGOMERY WARD & CO
prolonged the strike. If it appears that a Company's
violation of law was not the reason for calling the strike or
the continuation of the strike, the walkout will not be
regarded as an unfair labor practice strike.23 It is clear, and
I find, that the strike was economic and that it was
prolonged on November 14, 1970, by the Respondent's
refusal to take back immediately strikers who had been
permanently replaced, on the one hand, and on the other
hand, the Union's insistence that all or none of the stnkers
be returned to work. The Respondent's refusal to take back
immediately permanently replaced stnkers is not pro-
scribed by the Act. Mackay Radio and Telegraph, 304 U.S.
333, 585 S. Ct. 904. Fuller Products, Inc., 376 F.2d 369
(C.A. 4, 1967); LTV Electrosystems, Inc., 388 F.2d 683
(C.A. 4, 1968); Capital-Varsity Cleaning Co., 395 F.2d 870
(C.A. 6, 1968).
In short, I find that the strike has remained economic
from its inception and has not been converted to an unfair
labor practice strike or prolonged by unfair labor practices.
I further find that by refusing on November 14 and on
December 21 to reinstate immediately all stnkers, who had
been permanently replaced, the Respondent has not
violated Section 8(a)(1) or (3) of the Act. See Mackay
Radio and Telegraph, supra. Cf. Laidlaw Corp. v. N L R.B.,
414 F.2d 99 (C.A. 7).
23 See Winn-Dixie Stores, Inc v N L R B, 448 F 2d 8 (C A 4, 1971),
Radiator Specialty Co v NLRB, 336 F 2d 495 (C A 4, 1964), Winter
Garden Citrus Products Co-operative v N L R B, 238 F 2d 128 (C A 5,
1956), N L R B v Scott & Scott, 245 F 2d 926 (C A 9, 1957), Rogers
Brothers Company, 169 NLRB 830, 834-835, Anchor Rome Mills, Inc, 86
NLRB 1120, Southwestern Pipe Co Inc v N L R B 444 F 2d 340 (C A 5,
1971), Clinton Foods, Inc, 112 NLRB 239, 36 LRRM 1006, Harcourt &
CONCLUSIONS OF LAW
613
1. Respondent, Montgomery Ward & Co., Incorporat-
ed, is an employer within the meaning of Section 2(2) of
the Act.
2. Retail Clerks Union, Local 1364, Retail Clerks
International Association, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. The September 29, 1970, strike was not an unfair
labor practice strike at any time since its inception, but at
all times remained an economic strike.
4. The Respondent, Montgomery Ward & Co., Incor-
porated, has not discriminated with respect to the hire or
tenure of employment or any term or condition of
employment to encourage or discourage membership in
any labor organization, with respect to the striking
employees.
5. The Respondent has not violated Section 8(a)(1) and
(3) 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 hereby issue the following recommended: 24
ORDER
The complaint is dismissed in its entirety.
Co, Inc, 98 NLRB 892
24 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order, and all objec tions thereto shall be
deemed waived for all purposes