Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

Mar 28, 1975

217 N.L.R.B. 165 (N.L.R.B. 1975)

MONTGOMERY WARD & CO., INC. - 165
Montgomery Ward & Co. Inc. and Miscellaneous
Warehousemen, Drivers & Helpers Local 986, Inter-
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America. Cases
21-CA-12417, 21-CA-12532, and 21--CA-12658
an answer denying the commission of the alleged unfair labor
practices.
Upon the entire record, from my observation of the de-
meanor of the witnesses, and having considered the posthear-
ing briefs submitted by the General Counsel and Respondent,
I make the following:
March 28, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On October 16, 1974, Administrative Law Judge Jer-
rold H. Shapiro issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief and an erratum thereto;
the Respondent filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached 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.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
the complaint be, and it hereby is, dismissed in its
entirety.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: The hear-
ing/in these cases held on August 13 and 14, 1974, is based
upon unfair labor practice charges filed by Miscellaneous
Warehousemen, Drivers & Helpers Local 986, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America,' and an amended consolidated com-
plaint issued on May 31, 1974, on behalf of the General
Counsel of the National Labor Relations Board, herein called
the Board, by the Regional Director of the Board, Region 21,
alleging that Montgomery Ward & Co., Inc., herein called
the Respondent, has engaged in unfair labor practices-within
the meaning of Section 8(a)(1), (3), and (5) of the National
Labor Relations Act, herein called the Act. Respondent filed
I On February 4, 1974, the charge was filed in Case 21-CA-12417. On
March 20, 1974, the charge was filed in Case 21-CA-12532, and an
amended charge was filed March 27, 1974 On May 7, 1974, the charge was
filed in Case 21-CA-12658.
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Montgomery Ward & Co., Inc., the Respondent, is en-
gaged in the retail sale and distribution of consumer goods on
a national basis at stores and warehouses located in California
and elsewhere throughout the United States. In its normal
course of business, Respondent annually does a gross volume
of business over $500,000 and sells and ships goods and mate-
rials valued over $50,000 directly to customers located out-
side the State of California. Respondent admits, and I find,
that it is an employer engaged in commerce and in a business
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
IL THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that Miscellaneous Ware-
housemen, Drivers & Helpers Local 986, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, the Union, is a labor organization within
the meaning of Section-2(5) of the Act.
III THE SETTING AND QUESTIONS TO BE DECIDED
Pursuant to a petition filed with the Board by the Union
in Case 21-RC-13323 for a representation election to be
conducted among the employees employed by the Respond-
ent at its Los Angeles , California, warehouse , the Respondent
and Union agreed that the Board would conduct such an
election on August 31, 1973.2 Of the 58 employees in the
voting unit, 28 cast their ballots for the Union, 24 against,
with 6 ballots being challenged . The Board's Regional Direc-
tor investigated the challenged ballots and on November 30
issued a report in which he recommended that the Union be
certified as the employees ' bargaining representative. Re-
spondent appealed this Decision to the Board , which on Feb-
ruary 22, 1974, issued its Decision wherein it denied the
appeal and adopted the Director 's findings, conclusions, and
recommendations and certified the Union as the exclusive
bargaining representative of all the employees in the appro-
priate unit which consisted of two buildings 1-1/2 miles
apart, referred to herein as warehouse number 1 and ware-
house number 2, respectively, and collectively as the Los
Angeles warehouse or facility. It is undisputed the Respond-
ent was opposed to the unionization of its Los Angeles ware-
house.
Viewed against this backdrop, the questions to be decided
in this proceeding are as follows:
1. Whether Respondent violated Section 8(a)(1) of the Act
by threatening employees with economic reprisals and the
loss of employment because of their support for the Union.
2 All dates hereafter , unless otherwise designated, refer to 1973.
217 NLRB No. 35
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Whether Respondent violated Section 8(a)(5) and (1) of
the Act when, without prior notification to the Union, it
hired casual employees to perform bargaining unit work in-
stead of recalling laid-off employees.
3. Whether Respondent, in violation of Section 8(a)(3) and
(1) of the Act, demoted employees, laid off and failed to recall
14 employees, and refused to offer to transfer these employees
to a new location, because its employees had supported the
Union.
IV THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Threats
1. The conduct of Walter Wise
The complaint alleges that from about August 24 to 31, the
day of the representation election , Wise threatened employees
with reprisals if they continued to support the Union.
Wise's ballot was challenged by the Union during the rep-
resentation election on the ground that he was a statutory
supervisor. The Board 's Regional Director in his report on
the challenged ballots made specific findings concerning
Wise's employment status and concluded that Wise was a
statutory supervisor . In its Decision , the Board adopted the
Director's findings and conclusion pertaining to Wise's
supervisory status. Respondent , during the instant proceed-
ing, conceded that the Regional Director 's findings of fact,
adopted by the Board, were correct but that the Board's
ultimate conclusion that Wise was a statutory supervisor was
not correct . Although afforded the opportunity , Respondent
did not adduce evidence on this issue during the instant hear-
ing. The General Counsel adduced testimony from Alfredo
Delgado which lends support to the Board's conclusion in the
representation case that Wise is a statutory supervisor. Based
upon the Board's findings and conclusions in the representa-
tion case (Case 21-RC-13323) which in the circumstances of
this case I have accorded "persuasive relevance"
(Amalgamated Clothing Workers ofAmerica v. N.L.R.B., 365
F.2d 898, 905 (C.A.D.C.) and on the whole record herein, I
find that Walter Wise during the time material to this case
occupied the status of a supervisor within the meaning of
Section 2(11) of the Act.
During the period immediately preceding the election,
Wise was the immediate supervisor of the approximately five
employees employed at warehouse number 2. Wise was op-
posed to the unionization of the warehouse and had so in-
formed the employees.
Employees Richard Imperial and Ezra Cobb testified that
before the election, Wise spoke to them in the warehouse
office about the Union. It is this conduct that the General
Counsel alleges constitutes an unfair labor practice. Wise,
according to Imperial, in the presence of employee Conrad,
told Imperial that he "hated" to see him get mixed up in the
Union but that it was up to Imperial to make his own decision
and to make a wise one. I do not consider this a threat which
could reasonably restrain employees from exercising their
right to support the Union. Likewise, I do not consider the
remarks attributed to Wise by employee Cobb as a threat
proscribed by the Act. Cobb, who was an active union adher-
ent, went to Wise about a week before the election and volun-
teered the fact that he was campaigning for the Union and
explained why, whereupon, according to Cobb, Wise "just
merely told me he didn't think [the Union] was a good thing
for me to get involved in and he did not like to see me get
involved in it. [Wise] said there would be hell to pay"
[emphasis supplied]. Presenting a slightly different version of
his reply, Wise at the hearing testified that he advised Cobb
that he wished he would not-get involved in the Union and
told Cobb that if he did get involved that it would lead to his
getting "all screwed up" with adverse kind of things that go
along with unionization such as strikes. Even accepting
Cobb's version, what occurred does not establish an unlawful
threat of reprisal. The substance of Wise's statement is not
free from ambiguity. Cobb, who initiated Wise's outburst,
must have known and expected that Wise, who was openly
opposed to the Union, would react emotionally when he
learned that Cobb was an active union adherent. Also, there
is no evidence that during the preelection period or thereafter
that Respondent otherwise engaged in any unfair labor prac-
tices in an effort to combat the Union's organizational cam-
paign. For all these reasons, I am not persuaded that the
remarks attributed to Wise by Cobb reasonably tended to
interfere with, restrain, or coerce Cobb, in the exercise of his
right to support the Union.
Based on the foregoing, I shall recommend that this allega-
tion of the complaint be dismissed.
2. The conduct of Calvin Edwards
It is alleged that Edwards threatened employees with the
loss of job opportunity because they had supported the
Union.
In support of this allegation employee Cobb, who was an
active union adherent and served as its election observer,
testified that during the first part of January 1974 that Ed-
wards, the manager of the Los Angeles warehouse, indicated
to Cobb that there was a likelihood there would be another
layoff of employees.' Cobb asked if it were possible for
Cobb and the other three or four employees who used to work
with him at warehouse number 2 to transfer to the Respon-
dent's new warehouse located in Garden Grove, California.
Edwards, according to Cobb's testimony, replied that he was
sympathetic and that "if [Cobb] would make a letter of
apology or explanation he would do everything he could for
[Cobb] to try to see that we got a transfer." Cobb testified he
was not sure of the words used by Edwards but was "almost
sure" he used the phrase "letter of apology." Cobb initially
did not testify that Edwards specifically indicated what it was
that Cobb should apologize for, but then testified that Ed-
wards had connected the letter of apology to "union mat-
ters." This was Cobb's first version of Edward's response to
his request for a transfer to the new warehouse. Later during
his testimony, when asked to give his best recollection of
Edwards' words Cobb testified, "He was just very sympa-
thetic and said that he would do what he could. He men-
tioned a letter of apology. That was about it." Only when it
was suggested that perhaps Edwards also said something
about the Union did Cobb remember, "He mentioned the
letter of apology would be with regards to our involvement
3 Respondent, as described later, laid off six employees on December 27
MONTGOMERY WARD & CO., INC.
in the Union." Later, at the conclusion of his examination,
Cobb for the first time testified to an entirely new version of
Edward's remarks. Now, according to Cobb, Edwards in
response to his request for a transfer "stated that before the
Union was involved the Company intended to transfer people
to Garden Grove [the new warehouse]." This response was
elicited in the form of a "Yes" to a leading question posed by
General Counsel, to which Cobb then added, "[Edwards] just
said there had been a change of plans. Some people were and
some people won't [be transferred]. He was very sympa-
thetic." Cobb's concluding testimony is not consistent with
his earlier testimony . It attributes a significantly different
response to Edwards when Cobb allegedly requested a trans-
fer to the new warehouse. The manner in which Cobb pre-
sented this testimony makes me very skeptical about its relia-
bility, nor did Cobb generally impress me as a credible
witness. For these reasons, I do not credit his testimony that
such a conversation occurred between himself and
Edwards."
Based upon the foregoing, I shall recommend that this
allegation of the complaint be dismissed.
B. The Alleged Change in Employees ' Conditions of
Employment Without Affording the Union an Opportunity
To Bargain
It is alleged that "since on or about April 1, 1974, Re-
spondent unilaterally, and without prior notification to or
bargaining with the Union, made changes in terms and condi-
tions of employment by hiring casual employees to do unit
work instead of recalling employees in the [bargaining
unit] on layoff status who had recall rights." The pertinent
facts can be stated briefly.
Respondent has employed casual employees to work in its
Los Angeles warehouse ever since it opened. For example,
during 1973, continuously until the layoff of December 27, an
average of between two-to-four casuals were employed on a
daily basis. They were not hired directly by Respondent but
instead Respondent contracted with various employment
agencies for their services. Each day Respondent determined
its need for casuals for that day and placed an order with an
employment agency. The services of casuals were required
whenever the normal complement of employees could not
perform the scheduled work. The casuals helped with the
loading and unloading of trucks and box cars and swept up
the warehouse. They performed the type of work generally
done by the unit employees classified as "freight handlers."
As indicated previously, following the layoff of six ware-
housemen on December 27, Respondent employed no casuals
until the 5-week period from April 1 through May 6, 1974,
when it employed four, two of whom were employed on a
daily basis and the other two worked a total of 12 days during
this period . Respondent reimbursed the employment agencies
$770.50 for their services. During this 5-week period, Re-
spondent had a substantial number of employees on layoff
status who were qualified to perform the work performed by
the four casuals. Since this was apparently the first layoff at
the Los Angeles warehouse, Respondent had no past practice
4 Edwards denied conversing with Cobb about transferring to the new
warehouse
167
of recalling laid-off employees rather than employing casuals.
Nor is there evidence that Respondent otherwise has a com-
pany policy of recalling laid-off employees rather than em-
ploying casuals or that Respondent generally was obliged by
company policy to recall laid-off employees before-employing
casuals.5 Finally, it is undisputed that Respondent did not
afford the Union an opportunity to bargain about its employ-
ment of the four casuals rather than recall laid-off employees
to perform the work.
Ultimate Conclusions
As the certified bargaining representative of the Com-
pany's Los Angeles warehouse employees, the Union had a
statutory right to be given notice and an opportunity to bar-
gain concerning any changes in the employees' terms and
conditions of employment , Fibreboard Paper Products v.
N.L.R.B., 379 U.S. 203 (1964), and N.L.R.B. v. Benne Katz
etc., d/b/a Williamsburg Steel Products Co., 369 U.S. 736
(1962). I am of the opinion, however, that in the circum-
stances of this case Respondent was not obliged to bargain
with the Union over its decision to use four casual employees
to perform unit work. The use of casual labor was but a
recurrent event in a familiar pattern comporting with Re-
spondent's usual method of conducting the operation of its
Los Angeles facility. Its employment of the four casuals was
merely a continuation, rather than an alteration, of pre-
viously existing working conditions. In other words, Respon-
dent's conduct did not involve a change in the status quo. Nor
does the employment of the casuals at the same time em-
ployees were on layoff status detract from this conclusion.
For, there is no evidence that the Respondent has a practice
or a policy of recalling laid-off employees in lieu of hiring
casuals. There is no showing that Respondent by its conduct
changed existing conditions of employment rather than
merely continuing the status quo. Finally , in evaluating the
conduct challenged herein, I have considered that it involved
casual work of a very short duration, which in my view did
not significantly impair bargaining employees' job tenure or
employment security or reasonably anticipated work oppor-
tunities.
The question posed by this allegation is a troublesome one,
but for the reasons set out above, on balance, I am of the
opinion that Respondent did not violate the Act when it
failed to invite the Union 's attention to its decision to contract
out for the use of casual employees instead of recalling laid-
off employees to perform the work.
C. The Alleged Unlawful Demotions
It is undisputed that three bargaining unit employees, Al-
fredo Delgado, Ezra Cobb, and Arthur Vasquez, were reclas-
sified with a reduction in their rates of pay. The General
Counsel alleges that Respondent in demoting these em-
ployees was motivated by a desire to weaken the Union and
rid itself of the Union 's adherents.
Alfredo Delgado, employed by Respondent since May
1970, was initially classified as a freight handler and in Febru-
5 The contention of the General Counsel advanced in his posthearing brief
that, "All employees who had been laid off had recall rights," is without
support in the record.
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ary 1971 was reclassified as a shipper checker . In June or July
1973, Delgado was transferred from warehouse number 1 to
number 2 where he continued to perform the work of shipper
checker. This work came to an end in November 1973 at
which time he was transferred back to warehouse number 1.
Upon his return , Delgado was not assigned shipper checker's
work but instead performed freight handler 's work. He was
not reclassified , however, until about January 12, 1974, at
which time Supervisor Wise told him he had been reclassified
as a freight handler, which resulted in his-earning 10 cents an
hour less. Delgado did not protest or ask for an explanation,
nor did Wise volunteer one. There is no evidence that the
shipper checker 's work performed by Delgado at warehouse
number 2 ended for any reason other than a legitimate one
or that in November 1973, and continuing thereafter, there
was shipper checker's work available for Delgado , which he
was discriminatorily denied.
The facts pertaining to the reclassifications of Cobb and
Vasquez are essentially the same. Cobb began to work for
Respondent in warehouse number 1 as a freight handler in
February 1970 and the next month was transferred to ware-
house (number 2 where he remained until November 1973
when he was transferred back to warehouse number 1.
Vasquez was hired in July 1971 as a freight handler-and was
employed continuously in warehouse number 2 until Decem-
ber 1973 when, with the closing of warehouse number 2, he
was transferred to warehouse number 1 . During their em-
ployment in warehouse number 2, Cobb and Vasquez were
reclassified from freight handlers to forklift operators with a
resultant increase in pay. When Cobb was transferred back
to warehouse number 1 in November 1973, he retained this
classification, but on or about December 27, the day the
Respondent laid off six employees as described below, Cobb
was notified by management , in substance , that Respondent
had too many forklift operators in its employ and because of
this, Cobb was being reclassified to the position of freight
handler. Likewise, Vasquez, who had been transferred to
warehouse number 1 on or about December 10, 1973, was
informed he was being reclassified to the position of freight
handler because the Company had too many forklift opera-
tors. Cobb and Vasquez suffered a reduction in their rate of
pay by virtue of their reclassification. When Cobb and
Vasquez were reclassified, there were not enough forklifts to
assign one to each of the warehousemen classified as a forklift
operator. There were too many employees classified as fork-
lift operators .' This situation arose because Respondent
during November and December had transferred three fork-
lift operators-Conrad, Cobb , and Vasquez-to warehouse
number 1 from number 2, which was permanently closed on
December 10, 1973.' The excessive number of employees
classified as forklift operators became even more noticeable
on December 27 when six employees classified as freight
handlers were laid off for lack of work. This was when Cobb
6 Based upon the credible testimony of Walter Wise , which was essentially
corroborated by the testimony of Warehouse Manager Edwards that in
December 1973, Respondent had only about five or six forklifts G.C. Exh
5 indicates that at the time of the reclassification of Cobb and Vasquez that
Respondent employed eight employees, including Cobb and Vasquez, classi-
fied as forklift operators
7 There is no contention or evidence that the transfer of Cobb and
Vasquez from warehouse number 2 ' to number 1 was impermissibly moti-
vated.
and Vasquez were reclassified . Following their reclassifica-
tion , Cobband Vasquez continued to operate forklifts which
was not unusual because it is undisputed, that warehousemen
classified as freight handlers, as well as forklift operators,
normally operate forklifts provided they are qualified to drive
them . But, as Cobb admitted , in comparison to the employees
classified as forklift operators , the freight handlers operate
forklifts "on a reduced scale."
Ultimate Conclusions
The evidence , to sum things up, establishes that Respond-
ent had a legitimate reason for reclassifying Delgado, Cobb,
and Vasquez to freight handlers. Delgado's work assignment
had ended ' and with respect to Cobb and Vasquez there were
too many employees classified as forklift operators . The ques-
tion remains whether in selecting these three for reclassifica-
tion Respondent was motivated by their union activities. Re-
spondent called no witnesses to explain its reasons for
selecting these three for, demotion over others in the same
classification . But it is the General Counsel that has the
burden of proving a prima facie case before Respondent is
obliged to justify its conduct. The General Counsel did not
adduce sufficient evidence to prove prima facie a case of
illegal conduct. Viewed most favorably for the General Coun-
sel, the record shows that Respondent was opposed to the
unionization of its Los Angeles facility and that one of the
demoted employees, Cobb, was the Union's election observer
and that the other two signed union cards and that employee
Rudy Reyes, the Respondent 's election observer , having the
same classification and less seniority than Delgado , was, se-
lected for demotion rather than Delgado. On the other hand,
Respondent had a legitimate reason for demoting Cobb, Del-
gado, and Vasquez, and the record does not demonstrate that
in reclassifying them rather than three others that the Re-
spondent deviated from company policy . Indeed , Respondent
at the same time it was demoting Cobb and Vasquez from
forklift operators to freight handlers was similarly demoting
an employee , De La Paz, who did not sign a union card and
who apparently did not otherwise support the Union. In this
regard , there is no evidence that Respondent either knew or
believed that Delgado or Vasquez had signed union cards or
were otherwise union adherents .' Nor is the timing of the
reclassifications especially significant coming over 3 months
after a substantial number of the employees in the representa-
tion election had indicated their support for the Union. Fi-
nally, there is no evidence that Respondent in an effort to
discourage its employees from voting for the Union went to
the extreme of committing unfair labor practices. In this state
of the record , I am not prepared to say that the General
Counsel has prima facie proven that the reclassification of the
employees involved herein was unlawfully motivated. Ac-
cordingly, I shall recommend that this part of the complaint
be dismissed.
S The only evidence of union activities on the part of Delgado and
Vasquez was the signing of union cards
MONTGOMERY WARD & CO., INC 169
D. The Layoffs
Respondent laid off 14 warehousemen, 6 on December 27
and 8 on January 25, 1974? The complaint in substance al-
leges that in laying off these employees, Rsspondent violated
Section 8(a)(3) and (1) of the Act. The pertinent evidence is
set out and evaluated herein.
On June 24, the Union commenced a campaign to organize
the employees employed at the Respondent's Los Angeles
warehouse, which consisted of two buildings, 1-1/2 miles
apart, referred to as warehouse number 1 and number 2 and
operated as one warehouse. The Union petitioned the Board
to conduct a representation election and an election was con-
ducted on August 31 with a majority of the eligible voters, as
described in detail above, voting in favor of the Union, which
resulted in the Union being certified by the Board as the
employees' bargaining representative. There is no evidence
that Respondent committed unfair labor practices in an effort
to discourage the employees from voting for the Union, nor
is there evidence that Respondent has failed or refused in any
manner to fulfill its obligation imposed by the Act to recog-
nize and bargain in good faith with the Union.
The employees employed at the Los Angeles warehouse
whom the Union successfully organized-the unit
employees-can generally be classified as plant clerical, ware-
house, delivery, and merchandising employees. The function
of the Los Angeles warehouse at the time of the Union's
organizational campaign was to receive rail and truck ship-
ments, principally of major appliance and garden equipment,
to warehouse them, and to deliver them to Respondent's
retail stores in the Los Angeles Metropolitan area and to the
homes of customers. Practically all of the bargaining unit
employees were employed in warehouse number 1, which had
been operated historically by Respondent under a long-term
lease. Only about five or six employees were ever employed
in warehouse number 2, which had been leased in 1970 for
only a short term until the Respondent built a new
warehouse.10
Warehouse number 1, an old building, was not adequate to
efficiently handle the Respondent's expanding volume of
business, and, in 1969, Respondent concluded that it required
a new warehouse facility to supplement the Los Angeles
warehouse and to house the clerical, merchandising, and
delivery functions. The logical place for such a facility seemed
to be in Orange County. A site was eventually found there in
Garden Grove, which was 38 miles from the Los Angeles
warehouse and plans were prepared in 1971 calling for the
new warehouse to be so constructed that all of the delivery,
clerical, and merchandising functions then being done at the
Los Angeles facility could be transferred in their entirety to
the new facility. This was decided because Respondent felt it
would be impractical to have these functions performed at
two locations. In addition, it was also decided by Respondent,
at that time, that with the construction of the new warehouse,
the Los Angeles warehouse could continue to operate as a
9 Kitzmiller, 1 of the 14, was absent from work January 25 on sick leave
and was not notified of his layoff until his return to work on March 14, 1974
10 When Respondent's new warehouse in Garden Grove went into opera-
tion in December 1973, Respondent as planned ceased operating warehouse
number 2 on December 10 and the three or four employees remaining there
were transferred to warehouse number 1.
warehouse, and employ warehouse personnel who would
continue to service the Company's retail stores from that
location.
Consistent with its decision to transfer the clerical, deliv-
ery, and merchandising functions to the new warehouse, Re-
spondent at the same time decided to transfer to the new
facility all the employees then performing these functions at
the Los Angeles facility, but since it had decided to continue
to use the Los Angeles facility as a warehouse to service retail
stores, no decision was made to transfer any of the ware-
housemen to the new warehouse." Finally, it is undisputed
that long before the Union's organizational campaign, as
early as the spring of 1973, it was common knowledge among
the Los Angeles facility's employees that Respondent was in
the process of constructing a new warehouse in Garden
Grove and that upon its completion all of the employees
performing clerical, delivery, and merchandising work at the
Los Angeles facility would be transferred to the new ware-
house.
The start of the construction of the new facility was
delayed by various problems; i.e., zoning problems, and did
not begin until February 1973 and was finished in October
1973. Then, it took several weeks to make the facility opera-
tional, and it was not until the weekend of December 1 that
Respondent transferred all of the delivery, clerical, and mer-
chandising functions from the Los Angeles facility to the new
facility. This move resulted in the transfer on December 1 of
the 24 employees who had been performing these functions
at the Los Angeles facility.12 Also during November and
December Respondent began to hire and employ warehouse
personnel at the new warehouse, and by the last week of
December, had a substantial employment complement of
warehousemen at that facility. During this period, because of
the traditional Christmas rush, the Los Angeles warehouse
was operating at peak'capacity and the warehouse's' personnel
worked substantial amounts of overtime. However, by the
last week of December, the Christmas rush had ended and at
the same time the new warehouse commenced to operate as
a warehouse and to service 9 of the Respondent's 14 retail
stores located in the Los Angeles area. The Los Angeles
warehouse, which had formerly serviced all 14, now serviced
only 6 stores.13 The result was a reduction in the amount of
work available for the warehouse employees employed at the
Los Angeles facility, causing Respondent to layoff six on
December 27 and an additional eight on January 25, 1974.
11 Respondent in planning the new warehouse did not anticipate that its
opening would result in less warehouse work for the employees employed
at the Los Angeles facility since Respondent's officials were of the opinion
that its retail sales were growing sufficiently to support both warehouses
without a reduction of employment. This belief was unduly optimistic, as
described below.
12 Respondent, in addition to these 24 transferees, transferred 4 others
from Los Angeles. John Pedroza, as operations supervisor, on November 1;
Jack Huselton, as the leadman in charge of loading and unloading trucks,
on November 2; Bob Coldenhoff, as dispatcher, on January 22, 1974; and
Mick Ruck, as a furniture refinisher, on March 21 1974.
13 The decision resulting in the above apportionment of the retail stores
between the two warehouses was arrived at during the middle of 1973 and
was based upon a special study involving population density and the flow
of traffic on the various freeways connecting the warehouses, the stores, and
the customers of the stores. Under the circumstances, the fact that three of
the stores assigned to the new warehouse for servicing may be physically
closer to the Los Angeles warehouse is not sufficient to impugn Respon-
dent's motivation in assigning these stores to the new warehouse.
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The decision to lay off the employees was made by Jim
Corley, the Respondent's senior warehouse manager, who
has the ultimate authority over the Los Angeles and Garden
Grove warehouses. Corley instructed Charles Kalberg, the
personnel manager at the Garden Grove facility, to notify the
employees about their layoff and to conduct separate termi-
nation interviews . Kalberg was given its assignment rather
than the manager of the Los Angeles facility, Calvin Ed-
wards, because of his greater experience with the Company
and its policies. Edwards had only recently, November 1973,
assumed the position of warehouse manager.
Of the employees laid off, it appears that 13 were classified
as freight handlers and 1 as a forklift operator. The General
Counsel, in his posthearing brief, has conceded that all 14
were laid off by seniority within job classification. Kalberg,
during the course of the termination interviews , told the em-
ployees, in substance, that they had been laid off because of
a lack of work and had been selected for layoff based upon
seniority within job classification.
During the termination interviews , one or two of the em-
ployees asked about employment at the new warehouse and
were told they would have to personally visit the warehouse
and apply there. When Thomas Kitzmiller-a laid-off
employee-returned to the Los Angeles facility from sick
leave in March 1974, he asked Los Angeles warehouse
Manager Edwards for a job at the new warehouse, and Ed-
wards informed him that he believed they were laying off
employees at that location but that Kitzmiller should person-
ally visit the new warehouse and talk with its personnel
manager, Kalberg. Jeffry Kahn , a laid-off warehouseman,
testified that on December 27 when Kalberg advised him
about his layoff that Kahn asked for a job at the new ware-
house. Kalberg advised him Respondent's policy was to hire
only employees who lived in the vicinity of that warehouse.
Kahn indicated that he met this residency requirement, and
Kalbert invited him to visit the warehouse and fill out a job
application, which Kahn promptly did. This treatment of
Kahn is consistent with Respondent's policy of (1) requiring
employees who desire to transfer from one facility to another
to fill out a new job application at the new location ,, and (2)
generally limiting the employment of employees to those who
live in the vicinity of a facility.14 Consistent with this latter
policy, each employee employed at the Garden Grove facility
as a warehouse employee resides within the immediate
vicinity of the warehouse.15 However, in situations where
one of its operations either in whole or in part is terminated
14 This policy is motivated by a desire to foster good community relations
and to reduce absenteeism and tardiness
15 I do not credit the testimony of warehouseman Olson that on December
27 dunng his termination interview that his request for a job at Garden
Grove was summarily turned down, without explanation, by Kalberg. Olson
was contradicted on this point by Wise, Kalberg, and Edwards, all of whom
were present during his itnerview . Also, I reject the testimony of warehouse.
man Doss that on January 7, 1974, at the Garden Grove facility, Kalberg
denied the request of Doss and warehouseman Barnes that they be allowed
to fill out job applications Barnes , an alleged discnminatee , was not called
by the General Counsel to corroborate Doss , whose pretrial affidavit submit-
ted to the Board is not consistent with his testimony , rather it indicates that
no request was made of Kalberg for a job application when Doss and Barnes
visited the new warehouse Kalberg , consistent with Doss 's affidavit, credi-
bly testified that Barnes and Doss simply asked For immediate employment,
and when informed there were no immediate openings left without seeking
to fill out job applications
and transferred to a new location , the Respondent does not
require that the affected employees who desire to work in the
new location fill out new applications or meet a residency
requirement. Likewise, persons who transfer to a new loca-
tion in a supervisory capacity are not required to apply anew
or meet a residency requirement. Thus, Respondent's transfer
of the employees described above from the Los Angeles
facility to the Garden Grove facility, without requiring new
employment applications or a residency requirement, is not
inconsistent with company policy.
The General Counsel contends, however, that prior to the
unionization of the Los Angeles warehouse , the Respondent
in a like manner had decided to accord the warehousemen the
privilege of transferring to the new facility without applica-
tion and without regard to place of residence. The only credi-
ble evidence presented on this point is that the manager of the
Los Angeles facility, Chuck Mathews, told the warehouse-
men in July 1972 that if they were interested in transferring
to the new warehouse, they should submit their names to
either Mathews or the warehouse foreman, Pedroza. Like-
wise, Mathews told warehouseman Cobb in March 1970 that
the men employed in warehouse number 2-the warehouse
which was leased on a temporary basis-would be transferred
to the new warehouse when it opened. Mathews left Respon-
dent's employ on August 1, 1972, at which time he was
replaced as manager by Jim Corley until November 1973 at
which time Calvin Edwards assumed this position. Corley,
prior to the unionization of the Los Angeles warehouse,
openly indicated to certain clerical and delivery employees
that they would be transferred to the new location. There is
no evidence that Corley ever indicated that the warehouse-
men would be transferred to the new warehouse , nor did
Edwards. Respondent was not able to determine the basis for
Mathews' above remarks because he died in August 1973 at
at a time when Respondent had no idea that he had made
statements which would involve it in this law suit. Under the
circumstances , including the lack of evidence, that Mathews
was privy to the decision involving the transfer of employees
to the new warehouse , I do not believe that the remarks
attributed to Mathews are sufficient to impugn the credible
testimony of Respondent 's District Operating Manager
Calamia that Respondent never considered transferring
warehouse employees from the Los Angeles facility to the
new warehouse because Respondent had concluded that un-
like the clerical , delivery, and merchandising functions that
the warehousing function would continue to operate at the
Los Angeles facility.
To demonstrate that Respondent deviated from its plan to
transfer warehousemen from Los Angeles to its new ware-
house, General Counsel adduced the testimony of warehouse-
man Doss that Los Angeles Warehouse Manager Edwards,
at a meeting of the employees held between December 10 and
15, told them that it was likely that some would be trans-
ferred to the new warehouse and others to retail stores. How-
ever, the testimony of warehouseman Richard Delgado does
not jibe with Doss'. Delgado testified that Edwards stated
that Respondent's District Manager Davis would "try to find
work" for the warehousemen at the Company 's retail stores.
Neither witness was particularly impressive on this point, and
General Counsel did not question any of the other ware-
housemen about this meeting. Edwards, who I credit, testi-
MONTGOMERY WARD & CO., INC.
fled that early in December a meeting was held to discuss
certain work problems at which time an employee asked
about the Company's policy concerning transfers to the new
warehouse, and Edwards, who had just assumed the position
of warehouse manager, replied he was not sure but believed
that in some parts of the country Respondent's policy was to
transfer satisfactory employees if they lived in the vicinity of
the new facility but that if employees were interested in trans-
ferring to the new facility, they would have to speak to Kal-
berg, the personnel manager of the new facility.
In considering whether Respondent's failure to transfer the
14 warehousemen instead of laying them off was dis-
criminatorily motivated, I have considered the General
Counsel's further contention that 1 week before the election
of August 31 that District Manager Davis addressed the
employees employed at the Los Angeles warehouse and
stated that there would be some transfers from Los Angeles
to the new warehouse but that he did not know who would
be transferred. This contention is based upon the testimony
of warehousemen Kitzmiller and Olson, whose testimony was
not corroborated by three other witnesses called by the Gen-
eral Counsel, who also testified about this meeting. To the
contrary, warehouseman Imperial testified that Davis told
the employees that no one employed in the Los Angeles
warehouse would be transferred to the new warehouse be-
cause Respondent was not going to have a union at the new
warehouse. In connection with Davis' preelection speech,
Respondent called one witness its regional labor relations
manager, John Bennett, who impressed me as a credible wit-
ness and whose testimony was corroborated by the testimony
of General Counsel's witness Doss. Based on their testimony,
I find that 1 week before the representation election of August
31 that Davis spoke to the employees in the voting unit to
persuade them not to vote for the Union, and during this
speech, Davis referred to the soon to be opened new ware-
house in Garden Grove and said that it would open as a
nonunion operation. An employee asked what he meant by
this, and the question was referred to Bennett, who explained,
"That it would open on a nonunion basis subject to the rights
of the employees there to organize a union if they saw fit. The
same as in the Los Angeles warehouse."
Ultimate Conclusions
It is undisputed that prior to the Union's organizational
campaign, the Respondent, for legitimate business reasons,
had decided to open and was in the process of constructing
a new facility located in Garden Grove, California, for the
purpose, among others, of serving as the warehouse for sev-
eral of its retail stores located in the metropolitan area of Los
Angeles, California. One result of this new warehouse, which
opened for business during the normal course of events, was
reduction in the amount of warehousing work performed by
the Respondent's existing Los Angeles warehouse. Ware-
houseman Cobb, a witness called by the General Counsel, in
effect testified that with the opening of the new warehouse,
which took over the servicing of nine of the retail stores
formerly serviced by the Los Angeles warehouse, that there
was a substantial reduction in the amount of warehouse work
at the Los Angeles facility. The General Counsel apparently
concedes that there was a substantial reduction in the work
171
starting late in December, which caused Respondent to need
fewer warehousemen in its Los Angeles facility but urges that
Respondent normally would have transferred the excess
warehousemen to its new warehouse in Garden Grove rather
than lay them off and theorizes that the failure to transfer
them was "discriminatorily motivated and part of a devious
plot . . . [to] weaken the Union and rid themselves of their
adherents." The facts do not fit the theory.
In failing to transfer the warehouse employees rather than
lay them off, Respondent did not deviate from its normal
procedures. The evidence does not demonstrate that during
the normal course of events Respondent would have-trans-
ferred rather than lay off the employees involved herein. Nor
is there extrinsic evidence indicating that Respondent used
the opening of the new warehouse as an excuse to retaliate
against the warehousemen because they had supported the
Union in the Board-conducted election. The record contains
neither conduct nor statements by officials of Respondent
indicating that Respondent would go to the extreme of ter-
minating employees because they had supported the Union.
Respondent simply informed its employees-without threats
or promises of benefits-that it was opposed to the unioniza-
tion of the Los Angeles facility. There is no evidence that
Respondent committed unfair labor practices designed to co-
erce its employees from voting for the Union. Nor is there
evidence that when the Union eventually won the election
that Respondent did not honor its statutory obligation and
recognize the Union as the employees' exclusive representa-
tive and bargain in good faith with the Union. In short, the
nature of Respondent's opposition to the Union does not
indicate that Respondent was of a state of mind to perform
such an extreme act as terminating 14 employees because the
employees' had supported the Union. Moreover, it is too
speculative to conclude that Respondent believed that the
warehousemen were the employees who had supported
the Union rather than the other voting unit
employees-clerical delivery, and merchandising em-
ployees-whom the Respondent, rather than lay off,
transferred to the new facility. I realize that the preelection
union authorization cards signed by the employees indicate
that the warehousemen were the principal union adherents,
but other than these cards, there is not an iota of evidence to
establish circumstances from which it can be inferred that
Respondent believed that the warehousemen were the ones
that had supported the Union. In this regard, the sole evi-
dence of the employees' union activities and of Respondent's
knowledge of such activities or sentiments is the fact that
warehousemen Cobb served as the Union's observer at the
representation election and that 30 employees signed union
cards, most of which were signed by the employees at a
meeting held at the Union's office and June 26, 1973. Other
than its knowledge that Cobb was a zealous union supporter,
Respondent, on this record, had no knowledge of the union
activities or sentiments of the other employees it selected for
layoff.
Nor does the evidence demonstrate that in selecting any
one of the employees for layoff that Respondent was moti-
vated by the employees' union sentiments. The selection for
the layoff, as described above, was based upon an objective
criteria, seniority within classification. There is no indication
that in using this method, Respondent deviated from normal
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practice or that its use was unreasonable . Moreover, as de-
scribed above, there is a lack of evidence that Respondent
believed that any of the laid-off employees other than one,
Ezra Cobb, were union adherents. And the sole evidence
adduced by the General Counsel to demonstrate that Cobb
was discriminatorily selected for layoff was the fact that
shortly after the representation election, Cobb was given a
correctional interview for being absent without permission in
June 1973. Assuming that the timing of this belated interview
is evidence that Respondent was mad at Cobb because he had
supported the Union, it is not sufficient to demonstrate that
the method used in selecting Cobb for layoff was
discriminatory. 16
In evaluating this portion of the case, I have carefully
considered Respondent' s treatment of employees Jeffry
Kahn, Ramon De La Paz, and C. R. Coldenhoff, which the
General Counsel urges indicates Respondent's discrimina-
tory motivation. Kahn, as described earlier, was eligible for
and applied for employment at the new warehouse in January
1974, yet was not offered employment there until April 1,
1974, despite the fact that there was a job for him as early as
February 1974. Respondent's failure to promptly offer Kahn
a job at the new warehouse when an opening occurred is
peculiar. Yet the lack of evidence that Kahn engaged in any
union activity, other than sign a union card, or that Respond-
ent believed he was a union adherent, leads me to conclude
that the General Counsel has failed to show unlawful dis-
crimination in the delay by Respondent in offering Kahn a
transfer to the new facility.
Regarding De La Paz, the record reveals that on January
21, 1974, he was reclassified from forklift operator to dis-
patcher. Likewise, Coldenhoff, on or about the same date,
was reclassified from forklift operator to dispatcher and
simultaneously transferred to the new warehouse. Respon-
dent offered no explanation for its treatment of these two
16 Also, I note that Cobb, as well as several of the other laid-off employees,
was recalled by Respondent, apparently as soon as a need developed for his
services.
17 I carefully considered the contention of the General Counsel that Olson
signed a union card, but the record does not contain such a card
warehousemen. But since, in my opinion, the General Coun-
sel did not otherwise demonstrate prima facie that Respond-
ent violated the Act, Respondent was not obliged to justify
this conduct. Moreover, Coldenhoff was apparently a union
adherent having signed a union card. Finally, there is no
showing that absent their reclassification that either De La
Paz or Coldenhoff would have been selected for layoff instead
of a prounion employee such as Cobb, who Respondent knew
was a union adherent. For all of these reasons, I am unable
to conclude that the Respondent's treatment of either De La
Paz or Coldenhoff is sufficient to demonstrate that in laying
off or failing to transfer other warehousemen that Respond-
ent was motivated by the employees' union activities.
One last point. In concluding that Respondent lacked
knowledge of the union sentiments of 13 of the laid-off em-
ployees and that its selection of these employees was not
discriminatorily motivated, I have considered that of the 14
employees selected for layoff, all but 2, Olson and Castaneda,
had signed union cards." This does not, however, constitute
a disproportionate percentage of union adherents be-
cause the record establishes that at the time of the
layoffs-December 27 and-January 25, 1974-27 of the 33
employees employed then at the Los Angeles warehouse had
signed union cards. In other words, about 81 percent of em-
ployees remaining in the bargaining unit during the period of
the layoff and 85 percent of the employees selected for layoff
had signed union cards. Clearly, a disproportionate number
of card signers were not selected for layoff. In any event,
assuming there was a telling percentage of union card signers
selected, it would not support a finding of discriminatory
motivation whereas in the instant case such evidence is not
supported by other indicia of unlawful discrimination.
In view of the foregoing, I conclude that the General Coun-
sel has not proven by a preponderance of the evidence that
Respondent, by laying off, failing to recall, or by failing to
transfer the employees named in the complaint, has violated
Section 8(a)(3) and (1) of the Act. Accordingly, I shall recom-
mend that this portion of the consolidated complaint be dis-
missed.
[Recommended Order for dismissal omitted from
publication.]