Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

Sep 16, 1975

220 N.L.R.B. 373 (N.L.R.B. 1975)

MONTGOMERY WARD & CO., INCORPORATED
Montgomery Ward & Co., Incorporated and Interna-
tional Union of Electrical , Radio and Machine
Workers, AFL-CIO-CLC. Cases 16-CA-5565 and
16-RC-6526
September 16, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS , AND PENELLO
On May 28, 1975, Administrative Law Judge Irv-
ing M. Herman issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief and the General Counsel filed
an answering brief in response to Respondent's ex-
ceptions.
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, as modified herein.
1. For the reasons set forth by the Administrative
Law Judge, we agree that Respondent violated Sec-
tion 8(a)(1) of the Act by threatening employee Hal-
ley pursuant to an unlawfully promulgated no-solici-
tation rule and by imposing. an unduly broad ban on
the use of union stickers on company uniforms and
company property. We also agree that Respondent
discharged Walter L. Cockrell because of his union
activities in violation of Section 8(a)(3).
2. On November 14, 1973, almost 3 months before
the commencement of the Union's organizational ef-
forts, Respondent 's Regional Personnel Manager
Trebesch sent a memorandum to the metropolitan
district manager in Oklahoma City, Raymond Mus-
satto, and other district managers directing them to
conduct area wage surveys among competitors so
that Respondent could remain competitive with re-
spect to wages and "not only secure the best people
in town but give them an opportunity to grow finan-
cially on their job based on performance ...." The
memorandum further directed that if current wage
scales did not fit the surveys, corrections should be
requested from Respondent's Kansas City regional
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board 's established policy not to over-
rule 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 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
373
office. The district managers were also instructed
that "[i]f these adjustments are in order based upon
time and service and performance and represent sub-
stantial amounts, you should initiate a plan to grant
systematic increases on a one-month basis until your
present employees are equitably in line with the new
starting rate. Most of these adjustments should be
accomplished by two one-month increases and all
must be completed by no later than March 1, 1974."
Pursuant to the memorandum, Mussatto directed
Don McNutt, the district service manager in Oklaho-
ma City, to conduct the survey regarding service and
repair employees and to submit recommendations
based thereon. McNutt did so and on January 18,
1974, he sent to Mussatto a list of all service employ-
ees at Respondent's Penn Square Store in Oklahoma
City with their current job grade and current hourly
wage. He included the comparable hourly wage rates
for each job grade at RCA, General Electric, and
Westinghouse, which were Respondent's three pri-
mary competitors in the Oklahoma City area. He
also enclosed his recommendation which was as fol-
lows: "Recommend minimum going to GE wage
structure, though feel we should move up closer to
the RCA or Westinghouse rates." Mussatto approved
McNutt's recommendation and forwarded it to Kan-
sas City on either January 18 or 19, 1974.
Respondent's normal procedure was to have the rec-
ommendations reviewed by the regional operating
manager and then processed by Respondent's com-
puterized payroll system before any changes were an-
nounced to employees.
McNutt testified that he was notified of the official
approval of his wage recommendations around Feb-
ruary 5. According to his testimony, the announce-
ment of the increases was delayed until February 12
because he wanted District Operating Manager
Babbs to be present, and Babbs could not appear at
Respondent's service center until the 12th due to
other commitments at another store. On the 12th,
McNutt and Babbs met with the employees initially
as a group where they were told of the increases
which would be effectuated retroactively to January
31. They subsequently met with each individual em-
ployee to advise him of the specific amount of his
increase. Meanwhile, on February 8, 4 days prior to
the announcement, Union Representative Gaskill
and employee Anderson had met with McNutt, and
Gaskill stated that he represented a majority of all
servicemen and he wanted to meet and negotiate a
contract. McNutt refused to recognize the Union.
The General Counsel contends, and the Adminis-
trative Law Judge found, that Respondent granted
its employees increased wages to discourage them
from becoming or remaining members of the Union
220 NLRB No. 69
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or giving any assistance or support to it. We agree. It
is well established that where preparations for a
change in employee benefits are made prior to the
advent of union activity and there is no evidence that
the subsequent changes and the timing of their an-
nouncement are made in response to union activity,
the effectuation of the changes is not violative of the
Act? Such is not the case here.
Although it appears that McNutt had received ap-
proval of his recommendation of January 18, there is
no evidence that he was instructed to give specific
dollar figures to each employee. To the contrary, his
approved recommendation was rather general in that
it merely suggested that the minimum increase be
gauged to the G.E. wage structure, but should move
up closer to the RCA or Westinghouse rates. The
record is completely silent as to how or when the
actual amounts were determined. Several witnesses
received increases which placed them above the com-
parable G.E. rate, while the raises for other fell below
the G.E. rate.'
Although the Trebesch memorandum directed that
the increase for each employee should reflect his time
and service and performance, McNutt testified that
the amount of each raise given depended entirely on
each employee's existing job grade because he had
not been service manager long enough to have had
any basis for judging performances. Even though the
Administrative Law Judge did not credit McNutt's
denial, after some 3 months on the job, of any basis
for judging performance, nevertheless McNutt did
not even adhere to his professed standard for grant-
ing the increases; i.e., the employees' existing job
grades. Although both Panter and Halley were grade
4 employees, Panter inexplicably received a 30-cents-
an-hour increase, while Halley's initial increment was
35 cents. Although both Anderson and Cockrell were
grade 5 employees, Anderson received a 30-cent in-
crease , while Cockrell's increment was 35 cents.
Upon being advised that he would receive a 30-cent
raise , which would have brought him to $3.65 an
hour, Jackson informed Babbs and McNutt that the
former service manager had promised him $4 an
hour after he had been there 1 year. McNutt had no
way to verify this, but, after consulting with Babbs,
he told Jackson that he was going to give him an
extra 35-cent raise. Similarly, Halley was told he
would receive a 35-cent increase, whereupon he in-
formed McNutt that he had worked for Respondent
2 Cf. Essex International, Inc, 216 NLRB No. 101 (1975); Mallory Con-
trols Company, a Division of P. R. Mallory Co, Inc, 214 NLRB No. 71
(1974).
3 While Jackson 's initial increase placed him 5 cents above the G.E. rate
and Panter 's increase placed him 6 cents above the G.E. rate, Anderson's
increase fell 2-1/2 cents short of the G .E. rate.
for 18 months without a raise and he had been prom-
ised 6 months after he started working that he was
going to receive top pay which the 35-cent raise did
not achieve. Again McNutt and Babbs, based on
nothing more than Halley's word, gave him an addi-
tional 35-cent increase. These two additional increas-
es were based neither on the criteria set forth in the
Trebesch memorandum nor on McNutt's decision to
give uniform raises based on existing job grades. Fur-
thermore, the grant of the increases for Jackson and
Halley of 65 cents and 70 cents, respectively, failed
to adhere to the Trebesch memorandum's directive
that if the raises represented substantial amounts,
they should be accomplished by two 1-month in-
creases. Instead, both of these large increases were
made effective January 31, as were all of the other
raises. If Respondent had followed the Trebesch
memorandum, the extra increases for Jackson and
Halley should have been effective as of the end of
February in that they would have been fully imple-
mented by the March 1 deadline for all raises.
Although we agree that the general decision to
grant wage increases was made before the advent of
the union campaign and was not in response to the
Union's efforts, in view of the above evidence, we
find that the nature and timing of the increases ulti-
mately granted conformed with neither the Novem-
ber 14, 1973, Trebesch memorandum regarding the
wage adjustments, nor McNutt's professed criteria
for granting them, but, rather, were in response to the
union campaign and therefore violative of Section
8(a)(1).
3. In view of the above findings, we agree with the
Administrative Law Judge that the unfair labor prac-
tices were so extensive and serious as to render un-
likely a fair election in the future and that a bargain-
ing order is warranted.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and orders that the Respondent, Montgomery
Ward & Co., Incorporated, Oklahoma City, Oklaho-
ma, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Substitute the following for paragraph 1(b):
"(b) Promulgating, maintaining in effect, enforc-
ing, or applying a no-solicitation rule for the purpose
of discouraging union activities."
2. Add the following paragraph after paragraph
2(e) of the recommended Order:
MONTGOMERY WARD & CO., INCORPORATED 375
"IT IS FURTHER ORDERED that the petition in Case
16-RC-6526 be dismissed and all proceedings there-
with be vacated."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT grant or expedite wage increases
to our employees in order to discourage their
union activities.
WE WILL NOT promulgate, maintain in effect,
enforce, or apply any no-solicitation rule for the
purpose of discouraging union activities.
WE WILL NOT threaten our employees for vio-
lating any no-solicitation rule that has not been
validly promulgated.
WE WILL NOT threaten our employees against
wearing union stickers or other insignia except
when in contact with customers or the general
public.
WE WILL NOT discharge or otherwise discrimi-
nate against any of our employees for engaging
in union or other concerted activity protected by
the National Labor Relations Act.
WE WILL NOT in any other manner interfere
with, restrain , or coerce our employees in the
exercise of their rights under the National Labor
Relations Act.
WE WILL bargain collectively with the Interna-
tional Union of Electrical Radio and Machine
Workers, AFL-CIO-CLC as the exclusive rep-
resentative of our employees in the bargaining
unit in which an election was held on April 26,
1974.
WE WILL offer Walter Cockrell full reinstate-
ment to his former job, or, if that job no longer
exists, to a substantially equivalent job, without
prejudice to his seniority or other rights and
privileges , and make him whole for any loss of
pay suffered by reason of his discharge.
MONTGOMERY WARD & CO., INCORPORATED
DECISION
STATEMENT OF THE CASE
charge was filed on May 6 by International Union of Elec-
trical, Radio and Machine Workers, AFL-CIO-CLC
(herein called the Union) and duly served on Respondent
the same day. The primary issues are whether Respondent
engaged in certain coercive conduct in violation of Section
8(a)(1) of the National Labor Relations Act, as amended
(29 U.S.C., Sec. 151, et seq.), herein called the Act; violated
Section 8(a)(3) by the discharges of Leroy E. Jackson and
Howard M. Panter; and violated Section 8(a)(3) and/or (4)
by the discharge of Walter L. Cockrell; whether Respon-
dent should be ordered to bargain with the Union; and
whether, absent a bargaining order, the result of the elec-
tion conducted in Case 16-RC-6526 on April 26 should be
set aside and a new election directed.]
Upon the entire record,2 including my observation of the
witnesses, and after due consideration of the briefs filed on
behalf of General Counsel and Respondent, I make the
following:
Findings and Conclusions
I. RESPONDENT' S BUSINESS
The complaint alleges, the answer admits, and I find that
Respondent is an Illinois corporation engaged in retail
sales, catalog sales, and repair service of merchandise at
many locations throughout the United States including the
Oklahoma City Repair Service Center at 3300 Santa Fe
Avenue, Oklahoma City, Oklahoma, the only facility in-
volved herein; that during the 12-month period preceding
the complaint, a representative period, Respondent re-
ceived at said facility shipments of goods valued in excess
of $50,000 directly from points outside Oklahoma and
shipped from said facility goods valued in excess of
$50,000 directly to points outside Oklahoma; and that Re-
spondent is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges , the answer admits , and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
1. Background
Until February 1, 1974, the service center here involved
had operated as the responsibility of Ward's Penn Square
store in Oklahoma City, its function being the servicing,
repair, and maintenance of appliances purchased by
Ward's customers. Its services were performed by techni-
cians either dispatched to the customers' homes or assigned
to similar duties in its own shop. On February 1, the service
center was given independent status to coincide with its
IRVING M. HERMAN , Administrative Law Judge: This
consolidated case was heard before me on October 2-4 and
November 4-8, 1974, at Oklahoma City, Oklahoma. The
1 The Union lost, 17 to 12
2 Certain errors in the transcript are hereby noted and corrected
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
increased responsibility for the entire metropolitan area en-
tailed in the additional servicing of customers of a new
large store opening in Oklahoma City, known as the Cross-
roads store.
Preparation for the center's expanded functions necessi-
tated a major remodeling of its facilities at a cost in excess
of $100,000, commencing shortly after Labor Day in 1973.
At the same time , changes were made in the physical plant
designed to improve efficiency of the operation which had
been losing money. A basic change involved shifting the
various departments around; and dividing the work space
theretofore occupying a single large area into separate
rooms and offices for the various activities , and moderniz-
ing them , notably the parts department ,3 the dispatch of-
fice , the phone room and the service contract room, which
helped cut down the noise and provide greater privacy.
Each inside TV technician was separately boothed. To cut
down on the time spent in readying the outside technicians
for the workday, lockers were constructed for them in
which they could place their work orders and needed parts
and equipment.
2. McNutt's appointment as service manager
In mid-October 1973, Don McNutt, who had then been
employed by Ward's for about 14 years, the last 6 or 7 as
district service manager in Kansas City, was told by Re-
gional Personnel Manager Trebesch of the promotion pos-
sibilities in becoming district service manager in Oklahoma
City and remedying the problems then existing there. Mc-
Nutt accepted the assignment and arrived later that month.
He met with Raymond Mussatto who had just become
metropolitan district manager in Oklahoma City. They dis-
cussed the remodeling then in process, and the problems
confronting them. Mussatto told McNutt at that time to
make sure they had a competitive wage plan and all the
equipment they needed, and to "take a good look" at his
employees in order not to have "losers."
According to McNutt, he found "almost utter chaos
from the front door to the rear door ," resulting both from
the remodeling work going on 4 and from the "complete
lack of organization and discipline on the part of manage-
ment." Technicians would be milling about the first hour
or two every morning getting their assignments, procuring
parts, and searching for repaired merchandise ready for
return to customers. He introduced improvements in the
dispatch system , numbered all the merchandise bins, and
saw to it that the specific work orders and parts needed by
all outdoor technicians were placed in their lockers in ad-
vance so as to avoid delay in their dispatch. He ordered
many thousands of dollars' worth of additional necessary
parts, particularly updated ones , so as to keep sufficient
stock on hand both in the shop and on the outside techni-
cians' trucks, which he had found inadequately supplied
both in quantity and quality. He improved the carrying
capacity of the trucks through the building of bins. How-
ard Panter testified that shortly after McNutt's arrival, at
3 New bins and counters were built
4 The construction work was not completed until about the end of De-
cember.
his very first meeting, he announced his determination "to
do all he could, regardless of us , to [put the service center]
in the black." According to McNutt and Bobby Joe Tem-
pleton , who became assistant service manager in Novem-
ber, McNutt held frequent meetings of the servicemen at
which he soon announced various changes in working con-
ditions through the institution of new requirements or the
enforcement of existing rule or procedures, which were
then being ignored. These included, inter alia, taking cof-
feebreaks at regular times and confining them to the lunch-
room; requiring outside technicians to wait for coffee until
10 o'clock, or after servicing their first customer, and to
keep their own service trucks serviced and clean; barring
technicians from the dispatch room, the phone and service
contract rooms, and the parts department; and the proper
completion of work orders and daily route sheets.
3. Section 8(a)(1)
a. The wage increase
The technicians had frequently expressed concern over
when they were going to get pay increases, and the subject
was discussed in McNutt's first meeting with Mussatto.
According to Cockrell, McNutt acknowledged at a meeting
in November that the men were due for a raise and pre-
dicted they would have it by the end of the year.
On November 14, Regional Personnel Manager Tre-
besch sent a memorandum to Mussatto and to the seven
other district managers in his region 5 directing their atten-
tion to the "extremely important" matter of wage adminis-
tration in connection with the upcoming budgets for 1974
and in light of "the almost certainty" of imminent Federal
minimal wage legislation. The completion of area surveys 6
was stressed , with "[s]pecial emphasis . . . in such areas as
... repair service,"' in order to remain competitive and
"not only secure the best people in town but give them an
opportunity to grow financially on their job based on per-
formance"; and if the current wage scales did not fit the
surveys, the district managers were instructed to request
correction from "Mr. Kerr" in Kansas City. Finally, if such
adjustments were "in order based upon time and service
and performance and represent[ed] substantial amounts,"
the memorandum instructed that a plan be initiated "to
grant systematic increases on a one-month basis," with
"most" of them to "be accomplished by two one-month
increases and all must be completed by no later than March
1, 1974."
Mussatto "followed through with the recommendations"
to each of the six or seven managers within his district,
including McNutt. According to Mussatto, he and McNutt
"wanted to have all our ducks in a row by February 1"
since that date marked the beginning of Ward's fiscal year
and of the service center's independence of the Penn
Square store, so they set that as "kind of our target date."
McNutt, following his survey,8 submitted a recommenda-
5 The south central region, covering some 152 installations.
6 These had evidently been started earlier
7 One of the "departments . most difficult to staff with good people
and hold them."
8 McNutt testified that the survey covered the four "comparable service
MONTGOMERY WARD & CO., INCORPORATED
tion on January 18, 1974, that as a "minimum," the service
center equal the General Electric rates , "though feel we
should move up closer to the RCA or Westinghouse
rates ." 9 Mussatto testified that he approved the recom-
mendation and forwarded it to Respondent's regional of-
fice in Kansas City on "probably" January 18 or 19.10 The
procedure then would be for the recommendation to go to
the office of F. A. Zodrow , regional operating manager,
and "then those people, as merely a formality , they handle
the details insofar as getting it to Marion 11 where the me-
chanization payroll units are located ." Mussatto got no
further correspondence on the recommendation , nor, ac-
cording to his testimony, did he ever discuss with McNutt
the timing of any announcement of the raise which was
entirely up to McNutt once Mussatto had approved it.
McNutt testified on direct examination that "the in-
creases set forth on [his survey and recommendation]"
were "put into effect" and , confirming the general employ-
ee testimony, that they were made effective January 31 12
though announced to the employees on February 12. Mc-
Nutt further testified that the announcement was made a
few days to a week after he had learned that the raises
would be forthcoming; that District Operating Manager
Babbs,13 whom he had wanted "to say a few words" to the
men, had been unavailable at an earlier date ; that after the
general announcement he and Babbs retired to McNutt's
office where each man then came to be told what his spe-
units" in the area which "were obviously Sears, our largest competitor, RCA
Service Company, General Electric was right across the street , and I believe
Westinghouse ," but his ultimate report of the survey , containing his recom-
mendation , did not mention Sears.
9 The report and recommendation listed the employees , their dates of
hire, their grades , their hourly wages, and those of Ward's area competitors
as follows:
Hiss Hire Current Current RCA CE WEST
Date Job Hourly C/Rr. C/Hr. C/Hr.
Grade Wage waste wave Wage
Anderson 6-9-69 5 $4. 50 5.075 4.825 5.05
Cockrell 4-13-65 5 4.50 5.075 4.825 5.05
Cinder 9-6-66 5 4.50 5 . 075 4.825 5.05
Cossey 9-19-53 5 4.50 5.075 4.825 5.05
?enter 8-11-72 4 4.15 4.375 4.39 4.39
Ford 2-19-32 5 4.50 5.075 4.825 5.05
Does 8-3-73 2+ 3.00 3.50 3.12 3.25
Wagoner 9-4-73 3 3.35 3.75 3.60 3.70
Huckaby 5-21-66 5 4.50 5.075 4.825 5.05
Masan 3-16-54 5 4.50 5.075 4.825 5.05
Lao 5-19-70 3+ 3.70 4.00 4.00 4.10
Stout 8-4-69 5 4.50 5 .075 4.825 5.05
Taylor 2-5-68 5 4.50 5 .075 4.825 5.05
Ligons 2-28-72 2 2.75 3.50 3 . 12 3.25
Jackson 10-3-72 3 3.35 3.75 3 . 60 3.70
Halley 9-8-70 4 4.15 4 . 375 4.39 4.39
Halton 4-11-67 5 4.50 5.075 4.825 5.05
Effinger 1-2-74 3 3.00 3. 50 3.12 3.25
10 At that time he received similar recommendations from all the other
units in, his district, but he could not recall particulars about the granting of
any of those raises.
1 Ward's computer center in Marion , Kansas.
12 Mussatto testified that it is corporate policy to make raises effective on
Thursdays, the beginning of the workweek . January 31 was a Thursday.
13 So spelled in the pleadings although sometimes appearing in the tran-
script as Babb . He also reports to Mussatto.
377
cific raise would be; that every technician received a raise,
the amount depending entirely, save in two cases, on his
grade at the time, because McNutt "had no basis to formu-
late whether he was a good technician, a bad technician, a
high performer or a low performer"; 14 and that for the
same reason the exceptions were made for Jackson and
Halley, each of whom got a double increase after telling
McNutt that he had been promised a higher rating by this
time .15 The only specific amounts disclosed by the evidence
were: Cockrell-35 cents; Anderson-30 cents; Panter-30
cents ; Halley-35 cents plus 35 cents; Jackson-30 cents plus
35 cents.
On McNutt's cross-examination, after corroborating
Mussatto That the timing of the announcement was in his
sole discretion, came the following:
Q. (By Mr. Eckhardt) When did you first find
out-I mean who determined when the effective date
of the February-withdraw that.
When did you first find out when the effective date
of the wage increase , which was granted in January,
1974, when that effective date would be and from
whom did you find that out?
A. I don't recall specifically who I found it out
from. I found it out, to the best of my knowledge, a
week or so-a few days before it was announced. We
held the meeting for the employees, and I had request-
ed Mr. Babbs to come down and assist me. He said he
was busy and tied up and couldn't do it.
And McNutt responded negatively to the question whether
he had any explanation for the retroactivity of the increas-
es.
Regional Employee Relations Manager Muir testified
that it was Zodrow's decision to make January 31 the effec-
tive date, and, when asked the basis, replied, "That's the
date that he got it in his office."
Cockrell, Jackson, and Panter testified that , at a meeting
in late January attended by all of the servicemen, Cockrell
asked McNutt when the men would get the raise that had
been promised and that McNutt replied there would be no
raises until the service center was "in the black." Accord-
ing to Mussatto, the service center has never gotten out of
"the red."
b. The Union 's appearance
(1) The organizing meeting of February 7
Meanwhile, on February 7, about 16 technicians from
the service center had attended a meeting of the Union's
Local 1027 16 at the latter's invitation following Cockrell's
indication to its chief steward of an organizational interest
on the part of the Ward employees. After the regular Local
1027 meeting the Ward employees were addressed by Ed
Gaskill, an international representative of the Union. He
14 Because the official performance rating program he introduced provid-
ed no measurements till after 6 months
15 He simply "took [their ] word" and gave them the additional raises "in
all fairness "
16 Which represents the employees of the neighboring General Electric
service shop.
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
informed them that organizing would be a difficult job,
that earlier attempts had proved fruitless , that even if they
won an election it would probably be necessary to strike to
get a contract, and that they should not waste his and their
time unless they were sure this was what they wanted to do.
After a brief pause he asked if they still wanted to go
ahead, and they orally responded affirmatively. He there-
upon distributed bargaining authorization cards as well as
combination membership and checkoff cards . He read the
form of bargaining authorization and explained that the
cards could be used to request recognition , but that if Re-
spondent refused recognition, "which [he] was almost posi-
tive they would do,"' the cards could be used to petition
the Board for a secret ballot election . He also explained the
nature of the membership and checkoff cards and told
them how to fill out the cards . Twelve signed sets of cards
were returned to Gaskill that evening . The employees then
voted unanimously that recognition should be requested
the following morning at the start of the shift, and desig-
nated Vernon Anderson to accompany Gaskill for this pur-
pose.
(2) The initial bargaining demand
At or about 8 a.m. on February 8, Gaskill and Anderson
entered the shop and asked Templeton if they could see
McNutt. After a short wait Templeton brought them to
McNutt's office where Gaskill told McNutt he represented
a majority "of all servicemen," I that he wanted to meet to
negotiate a contract , and offered to let an impartial third
party check the cards. McNutt replied, according to Gas-
kill, that he could not grant recognition because such mat-
ters were handled by the Employee Relations Department
in Kansas City, and Gaskill left.
McNutt's version of his response on direct examination
was that he was "stunned , and . . . for once in [his] life was
caught with almost nothing to say." He could not recall
that he "said one single word . . . . I don 't remember mak-
ing any comment to them at all, and they left my office."
On cross, he denied any recollection of telling Gaskill that
he lacked authority to reply to a bargaining demand, say-
ing he was "speechless."
(3) Further union efforts
On February 11, after having secured two additional
cards, Gaskill wired McNutt, "repeat[ing]" his request.19
Respondent replied February 12 by letter to Gaskill from
Muir in Kansas City rejecting the request, asserting a
good-faith doubt of the Union's majority status, and opt-
ing for the election route. Another card was obtained on
February 14, and two more on the 15th. However, turnover
still left the Union short of a majority as of such time. On
February 19, Jackson was discharged (see infra).
17 He "explained that very seldom did a company grant recognition and
that it was very unusual and I had never been fortunate enough to have this
ha en to me "
The appropriate bargaining unit, later determined to include the dis-
patcher as well as all clerks but office clericals, had 31 employees at this
time.
19 The unit complement had not changed.
At or about 7:40 the next morning Gaskill brought
union stickers for Anderson to hand out to the employees
arriving at work. After about one-half hour Gaskill and
Anderson went in to see McNutt to discuss Jackson's dis-
charge and make another bargaining request. According to
Gaskill's direct examination, he "informed McNutt again
that the IUE represented the majority of all production
and maintenance employees," 20 and that he specifically
"wanted to bargain over any changes of working condi-
tions" that had allegedly occurred.2 He also testified that
he protested against what he considered Templeton's sur-
veillance of Anderson's passing out the union stickers that
morning. McNutt refused to talk except to ask Gaskill and
Anderson to leave, and to threaten to call the police or the
store security people, when they hesitated.
That same day Gaskill wired McNutt to the same effect
as the position he testified he had orally expressed, except
that the wire did not identify the bargaining unit and con-
tained no mention of changed working conditions. Muir
replied the following day by reiterating his earlier position,
refusing to discuss Jackson's discharge, disavowing any un-
lawful conduct, and requesting that any further communi-
cations be directed to his office which handles all such
matters.
c. The alleged surveillance
The references above to Templeton's surveillance relate
to testimony by Gaskill and Anderson that Templeton kept
Anderson under close observation throughout the approxi-
mately 30-minute period in which he distributed the union
stickers on the morning of February 20. The distribution
occurred on the company parking lot about 25-30 feet di-
rectly in front of the side entrance to the service depart-
ment. Gaskill testified that, about the time the men started
to arrive, Templeton came out the side door and stood on
a little platform there, and he told Templeton "that the
company should cease their illegal activities that [he] had
been hearing about and . . . should cease the surveillance
and spying"; that Templeton, whom he observed very
closely, went back in but continued to look in their direc-
tion from behind the glass panel in the door during the
entire time that Anderson was so engaged. Anderson testi-
fied that when Templeton came out he asked Anderson
what he was doing and Anderson told him; that although
Templeton went back in he saw Templeton watching him
every time he looked up; and that Templeton opened the
door for each man as he entered. Templeton's testimony
was that he had arrived about 7:40, as usual, and observed
Anderson with Gaskill whom he did not know or recognize
at the time; that after attending to his routine of turning off
the alarm, unlocking the doors, putting the lights on, and
preparing coffee, he "peeped out," as a friend, to see if
Anderson was still there,z3 that after seeing that he was,
20 On cross , he testified that the unit he requested on that occasion was
the "servicemen and parts clerk "
21 Gaskill testified he had in mind "a series of changes in the men 's proce-
dures, their working procedures , getting in-and as I recall at, getting in and
out of the shop, the times and changing of the break periods . . "
22 On direct examination he said he thought Anderson might be in trouble
in view of the presence of the "stranger " On recross , he said he "didn't
think anything about it," but then said he did wonder because Anderson
MONTGOMERY WARD & CO., INCORPORATED
Templeton "went on back"; and that he did not see Ander-
son giving anything to anyone . No employee testifying to
Anderson 's distribution of the stickers corroborated the
testimony that Templeton held the door open for him.
d. The February 20 meeting or meetings
That same morning, either in a single meeting or in sepa-
rate meetings , two matters involving the technicians were
treated by McNutt who convened them. First, after look-
ing around at the men, virtually all of whom were wearing
the union stickers , 23 he remarked that there was "a prob-
lem" and warned them , on pain of discipline , against fur-
ther use of the stickers on their company uniforms or on
any other company equipment , including trucks and tool-
boxes . 24 The other event concerned the changes in working
conditions mentioned above. According to McNutt, there
was still too little compliance with his repeated efforts to
improve discipline and efficiency , so he prepared a list of
the requirements he was insisting on, which he read to the
men and then asked them to initial or sign so as to preclude
any future disclaimer of knowledge . Several employees tes-
tified that this meeting 25 marked the first occasion they
had learned of these rules or any of them . However, some
of these same employees gave conflicting testimony as to
when they learned of these rules as well as to how long the
rules endured.
Cockrell testified that at a January meeting McNutt
mentioned "some new rules and regulations and about how
to make out work orders and things of this nature"; that
from about February 15 McNutt stated in general meet-
ings many times that shop men would be fired if they had
coffee before 10 a.m. or 3 p.m., and that the outside men
would suffer similarly if they took coffee before their first
service calls; that McNutt also changed the practice of
leaving the female clerks free to decide when to have lunch
by scheduling them for certain times , which interfered with
the former practice of some of the outside technicians to
arrange luncheon dates;26 that such technicians were also
barred from entering the office of the service contract girls,
which interfered with the men 's ability to ascertain what
the customers were to be charged as well as with their abili-
ty to have the girls follow up on the men's attempts to sell
service contracts on which the men received bonuses; that,
although the men were similarly barred from the other of-
fices, they could communicate with the girls there by "hol-
lering" in from the door.
Panter testified that at a January meeting McNutt com-
plained of work orders improperly completed and in some
cases disappearing. He also testified that "sometime in
had not soon come in and there was a strange car.
23 The stickers , saying "Join IUE," were round and about 2 inches in
diameter.
24 Panter, alone among the employees , placed this meeting "a couple of
days later."
Despite some testimony that this occurred at another meeting held
around that time, the paper signed or initialed by the men is dated February
20.
26 outside technicians normally ate outside on their 30 -minute lunch-
break and sometimes the girls met them outside , but frequently the dates
resulted in the men 's coming in. According to Cockrell, Halley came in
"nearly every day," and "some of the men came in every day"
379
February," which on cross-examination became "around
the middle of March," McNutt imposed the bar on enter-
ing the offices and parts room and announced that the
back doors would be locked at 10 o'clock, but explained at
the time that he did this because work orders had gone
astray, merchandise tags had been switched, and some
merchandise was missing; that the limitations on coffee-
breaks were also announced, as was a limitation on the
period for lunchbreaks to the hours of 12 to 2; and that the
outside men were required to have their parts for the day
and their route sheets completed and be ready to leave the
shop within 15 minutes of their arrival. He then testified
that the coffeebreak changes came at a later date which he
went on to fix at April 1, at a meeting confined to the
inside technicians, and this was "the first time that McNutt
imposed these rules , strict rules in taking coffee breaks and
taking lunch break." His firmness on the date as well as on
the nature of the alleged changes was then expressed in the
following colloquy:
Q. All right. Prior to this date of this meeting, had
any restrictions been placed upon you or the other
technicians with respect to the times that you were
permitted to take coffee breaks or lunch breaks?
A. The best that I can remember this was the meet-
ing that this was held. I do get them confused some-
times of what meetings was said but this was the meet-
ing that this was said at.
Q. Yes. But you didn't answer-the question, I
don't believe was responsive. I'm asking you whether
or not prior to this meeting you had-the company
gave you leeway in when you could take your coffee
breaks and lunch breaks?
A. No.
Q. Pardon me?
A. There was no other meeting, this was the only
one.
Q. No, you don't understand.
A. OK.
Q. Did you have freedom to take your coffee break
or lunch break at anytime-at your discretion prior to
this new rule?
A. Yes.
Q. Or rules?
A. Yes.
Q. All right. So, now that you understand me, were
you ever prohibited or restricted in the times that you
took your lunch break or coffee break before the
meetings that you have just mentioned?
A. No, I was not.
Anderson testified that it was some time between Febru-
ary 8 and April 26 that McNutt placed the girls' rooms off
limits and ordered that the outside men be out of the build-
ing within 20 minutes after clocking in 27 and that they
make at least one service call before breaking for coffee.
Then came this colloquy:
Q. (By Mr. Eckhardt) Did I ask you to make a copy
27 Until then, according to Anderson, with the men getting their own
parts and making their own route sheets, it was almost impossible to get out
in 30 minutes.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of any company rules which were posted at the service
center?
A. Yes.
Q. Have you done that?
A. No, sir; but these were rules that he put up that
we were not to pass out any stickers or talk about
anything that's union activities or church activities or
any kind of activities other than working.
He then testified that "about the middle of February" Mc-
Nutt set the coffee and lunch break hours.
Jackson, who was discharged on February 19, testified
that McNutt had complained in January that work orders
were not being filled out properly and were missing in
some instances , and that the outside men were not getting
started on their routes early enough in the morning but
were loafing around the shop trying to get their parts to-
gether; that he also ordered that the trucks be kept clean
and that the men should call in and report between 3:30
and 4 p.m.
Halley testified to the meeting where the men signed or
initialed McNutt's notes of February 20.28 He then testified
that rules were laid down at a meeting "somewhere around
February the 1st, or 16th or the 20th," and he "never had
even heard of these rules before 29 He testified further that
the new rules "weren 't enforced . . . except for the work
order complaints." He subsequently stated that "after the
election , there was no rules enforced at all," but he then
explained that before the election the rules simply were not
broken, the men voluntarily complying. However, after the
election , according to him , the coffeebreak rules were bro-
ken and not enforced. Cockrell's testimony on this was that
the coffeebreak rules were "emphasized" at the general
meetings "[r]ight up until the date that I was terminated,"
which was 12 days after the election . Similarly, Anderson
testified that at least the coffee and lunch break rules sur-
vived the election.
e. Templeton's threat to Halley
About February 15, Halley testified, he had just finished
phoning a customer to schedule a call when Candice
Thomas, the dispatcher, asked if he knew whether the Gen-
eral Electric installation across the street was a completely
union shop. He said he did not know. Thereupon, Temple-
ton, whose office adjoined the dispatch office, called Hal-
ley in and told him that talking about the Union on com-
pany time could cost him his job and cautioned him
against it. Templeton did not deny this conversation. His
warning referred to a no-solicitation rule on a poster which
substantive validity is not questioned by the General
Counsel. Halley testified he had seen the poster before
April but was not sure whether it had been put up by the
time of his conversation with Templeton, although he ac-
knowledged having seen some poster by that time. The
poster had in fact been put up by McNutt, at Muir's direc-
tion, shortly after Gaskill's February 8 visit. The poster
28 He could not recall if it was the same meeting when the men wore the
stickers.
29 He corroborated Panter's testimony that McNutt explained the reasons
for the rules.
recites that it "sets forth the Company's long standing rule
concerning solicitations and distribution" but there is no
corroborating evidence in the record. Nor was there any
evidence of a need for the rule to maintain production,
order, or discipline.
f. The Union's petition
The Union filed its representation petition on February
22 for a unit of "all service technicians and parts clerks."
Hearing was held on March 21.30 On April 5, the Regional
Director issued his Decision and Direction of Election in a
unit of "all service technicians and service clerks . . . in-
cluding inside and outside white-line technicians , television
technicians, general technicians, repair service clerks (parts
clerks), vendor-charge-back clerk, service contract tele-
phone clerks, and dispatcher." As indicated above, the
election was held on the morning of April 26.
g. The postpetition preelection period
On April 12 and 23, Muir addressed the assembled em-
ployees.31 The only two employees of the 20-30 allegedly
present testifying about any talk by Muir refer to a few
days before the election. Cansler testified that Muir said he
would take a strike or close the shop before he would give
the Union a contract. On cross-examination he admitted
that Muir had said the Company would bargain very hard.
Cansler also testified that Muir had said that wages were
about the same all over town and the same as in other large
Ward branches.
Halley testified on direct examination that Muir had
said that Ward's Denver store (in the same region of the
Company) was a union shop, that the Kansas City store
was partly union , and that the Union would not get the
men anything they did not already have since wages and
benefits are nationwide; that Ward's would fight a union,
and take a strike or farm out work to General Electric
across the street "before they negotiated with the Union."
On cross, he testified that Muir said he "would not bargain
with the Union" but would farm out the work to GE; and
in response to the question, "Even before talking to them?"
he said, "I guess he'd never talk to them," and that he
"understood Mr. Muir saying . . . that if we did vote in the
Union, that they would farm out our work to General Elec-
tric across the street." He was sure that Muir said "he
wouldn't bargain with the Union." Led on cross, he testi-
fied that Muir said that in the event of a strike the Compa-
ny would close the shop and contract out the work.
30 On which date a warning was placed in Cockrell's personnel file (see
infra).
31 In the Company's statement of position during the investigation, Muir
fixed April 19 as the date of his first speech . At the hearing he testified that
a more careful examination of his records had revealed that the correct date
was April 12, and that a talk delivered on April 19 had been given by Jack
Brousard , assistant to the corporate vice president in charge of labor rela-
tions. General Counsel does not contend that any statements made in the
course of these talks constituted independent unfair labor practices, but
urges that they manifest union animus , and attributes all such expressions to
Muir; nor does the evidence point to any antiunion conduct or statements
by Brousard
MONTGOMERY WARD & CO., INCORPORATED
According to Muir, however, the April 23 talk lasted
only a few minutes , and he said nothing other than explain
the formalities and procedures of the election and urge all
to vote. As for April 12, he denied saying anything about
closing down or subcontracting the work and testified that
the place had never closed in prior campaigns by the
Teamsters and IBEW , even when the latter became bar-
gaining representative . He summarized his position to the
employees as being that bargaining did not generate any-
thing because the Company was free to say "no-n -o"; that
it had bargained with IBEW for 18 sessions without reach-
ing a contract; that whatever the Union can get "they get
from us" ; that unions usually strike because their demands
are not granted ; that in the case of an economic strike the
employees are subject to permanent replacement ; that the
Company had had strikes before, as in Redding, Califor-
nia, for over 2 years, in Pueblo, Colorado, over 9 months,
in Detroit at Christmas during the height of the retail sea-
son, and in all cases remained open and ran its business;
that in Oklahoma , unlike Texas , the law permits a "closed
shop" so that there can be full union security where the
employees must pay dues; and that he did not know what
the Union had promised them, but that if it was not com-
petitive , the Company would have the legal right to resist
it, and if the Union did not like that it would have to
"make a decision."
On April 16, Panter was discharged (see infra). The same
day, employee Calvin Dees went to McNutt's office where,
according to his direct testimony , he asked McNutt for a
transfer . McNutt asked if it was because of the Union, and
he replied no, that it was personal, and McNutt told him
not to worry about it, that even if the Union got in he
would force a strike rather than sign a contract . He testi-
fied on cross that McNutt had said previously that the
Company "would bargain very hard" with the Union and
he "could have" said that in this conversation also. In re-
sponse to my inquiry whether McNutt had said he would
not sign a contract , Dees answered affirmatively "the way
I understood it." McNutt denied threatening not to sign a
contract.
At or about 5:30 p.m. on April 25, the day before the
election, according to Max Chavez,32 when he was ready to
clock out, McNutt asked him if he planned to come in to
vote, and he said he did . McNutt said a "No" vote was for
McNutt and a "Yes" vote against him, and that Chavez
should feel that he could talk to McNutt man to man and
did not need a union . Chavez' regular work hours were
1:30-5:30 p.m. on weekdays and 8-5:30 on Saturdays. The
election was held on Friday from about 8:30 to 9:15 a.m.
Chavez clocked in at 8, voted, then worked till 10 or 10:30,
clocked out for school , then returned in the afternoon. He
was paid for all his time on the clock that day.
Meanwhile, the Union had obtained three additional
signed authorization cards, on April 10, 13, and 16, re-
spectively , so that on election day it had 16 cards from
among the 31 employees then in the bargaining unit.
32 He worked afternoons on weekdays and attended classes starting in
midmorning.
33 Similar to one given another employee , Roy Halley, as indicated below.
h. Postelection events
381
On May 3, the Union filed 13 objections to the election
and conduct affecting the results. On May 8, Cockrell was
discharged (see infra).
4. Section 8(a)(3)
a. Jackson
Jackson, an outside service technician, was discharged
on February 19, 1974, after having worked at this location
since October 2, 1972. Immediately prior to that he had
worked as a summer extra at a Ward service center in Pop-
lar Bluff, Missouri, whose manager, lacking an opening for
a fulltime man , had given him a letter of recommendation
noting his "good attitude" and that his "appearance and
cooperation [were] excellent." He testified that no superior
had ever criticized his work throughout his employment at
Oklahoma City; that on the contrary his work had evoked
praise on several occasions from McNutt's predecessor,
Service Manager Gramberg; that on the occasion of the
general wage raise on February 12 he had had his raise of
30 cents an hour increased to 65 cents upon informing Mc-
Nutt and District Operating Manager Babbs that Gram-
berg had promised he would be earning that much after a
year; that both McNutt and Babbs stated he was "doing a
good job"; and that McNutt also said he was thinking of
sending Jackson to "a service manager school coming up."
McNutt's explanation for the extra raise 33 was that he did
it "in all fairness," relying on Jackson's word that Gram-
berg had promised it; and that he had "no basis" indepen-
dently to know "whether he was a good technician, a bad
technician , a high performer or a low performer." Temple-
ton testified that he did not deem Jackson competent and
that he frequently got complaints from other servicemen,
including Cockrell, who had to follow up on Jackson's
work.
Jackson also testified that he had joined the Union Feb-
ruary 7, attended its meetings , and also unsuccessfully so-
licited the attendance of three other employees between
February 8 and 12, including Marie Green who later
served as a company observer at the election; and that in
addition he had voiced his union proclivity at numerous
coffeebreak meetings in 1973 attended by Templeton prior
to the latter's promotion to assistant service manager.
At 3 p.m. February 19, Jackson was called in off his
route to see McNutt, who, according to Jackson' s testimo-
ny, read a list of four items from a yellow pad and conclud-
ed, "From this date on, you're terminated. I'm not going to
blackball you, but you can't work for this company. You
can work for any other Montgomery Ward store." The
four items included Mrs. Hammond's TV, Mrs. Lyon's re-
frigerator, Mrs. Ogden's washer, and the hood flying off his
truck.
The first incident occurred on January 31. Mrs. Ham-
mond had told the dispatcher she was going out and that
her repaired TV set should not be delivered until she re-
turned. When Jackson arrived at her home no one was
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there, but the door was open, so he brought the TV in, set
it up, and left. He testified that customers usually appreci-
ate that so as not to forgo TV for a week until the next
delivery. He called the shop later and McNutt informed
him that Mrs. Hammond had called and threatened to
charge the Company with breaking and entering. McNutt
told him that there was a note on the dispatch sheet direct-
ing him not to make the delivery in Mrs. Hammond's ab-
sence. Jackson denied the presence of a note on the work
order but explained to McNutt why he had made the deliv-
ery. McNutt told him to return to Mrs. Hammond's house
to "cool her off," which he did. Jackson admitted on cross
that he did not usually enter a house in the occupant's
absence.
On February 14 Jackson delivered to Mrs. Lyons two
parts (a relay and capacitor) which another technician 3
days earlier had diagnosed as needed to repair a refrigera-
tor which was running defectively. After installing the
parts, Jackson was unable to get the refrigerator started at
all, and he decided it needed a new compressor which he
ordered, informing Mrs. Lyons it would take another 10
days to 2 weeks. Mrs. Lyons telephoned Templeton 34 to
complain, and Templeton sent Anderson out to the Lyons
house to check into the matter. Anderson found that Jack-
son had put the relay on upside down notwithstanding the
part bore an arrow an inch long marking the proper direc-
tion. Although Anderson also found that a new compressor
was needed, Jackson's faulty installation of the relay had
completely prevented the compressor from starting the mo-
tor.
Jackson denied any knowledge of a Mrs. Ogden or her
washer and testified that the first time he heard about the
incident was at the time of his discharge.35 Respondent's
account, as reflected in its statement of position during the
investigation of the charge herein, as well as in the person-
nel file entry made by McNutt, was that Jackson had de-
termined not to enter the house to make the necessary re-
pairs on February 11 because no one was home, although
in this instance the work order specifically noted that the
door would be open for the technician to go in.
The hood incident occurred on February 14. Jackson
had left home early in the morning while it was still dark
and had driven about 2 miles of the 26 he had to drive to
the service center when the wind blew the hood off his
truck which had been improperly fastened. Unable to find
it, he continued on to work. When he arrived, according to
his testimony, he could not find either McNutt or Temple-
ton to report the matter, but he removed the hood of a
truck not in use, put it on his, and started on his route 36
Templeton called him at his first stop and told him to find
his missing hood and report back, which he did. Templeton
testified that Jackson had told him of the incident when he
first came in that morning and that Templeton had told
him to go back and find the hood "that day as soon as he
possibly could"; that a little later he noticed that one of the
spare trucks was minus a hood, so he called Jackson on his
34 McNutt was away that day.
35 He added that his request of McNutt for details of this incident at that
time went unheeded.
36 He testified this was in plain view of many employees.
first job and, after ascertaining that Jackson had removed
that hood, ordered him to find his own.
Templeton informed McNutt, upon the latter's return on
February 18, of the events that had occurred in his ab-
sence , and McNutt decided to discharge Jackson. Accord-
ing to McNutt's account, he wrote out the reasons for
Jackson's personnel file and then read them to Jackson in
the discharge interview, "line for line, word by word," as
follows:
37
On 1/31/74 I received a phone call from Mrs. Ham-
mond. She was very upset because the service man,
Lee Jackson, had returned her T.V. unit , and while she
was out had entered her home without her permission
and no approval to do so listed on the work order.
(W/O #127111)37
Mr. Jackson was called in from the road and in-
formed this was not to happen again.
On 2/11/74 We dispatched a service man on Mrs.
Lyons Refg. The trouble found to be a faulty relay
and capacitor. Parts were obtained and Lee Jackson
was scheduled to call on 2/14/74. The unit was run-
ning but clicking on the faulty relay. After installing
the parts Lee Jackson could not get the unit to run and
left the customer's home with the unit dead and no
firm information of what we would do about it. Mrs.
Lyons contacted the office that day and Mr. Temple-
ton dispatched another service man at once to the
home. Upon inspection of the repair found the relay
installed upside down-(Clearly marked on the part
the correct way to install)-corrected that problem
and the unit started and ran. This careless handling
resulted in double expense to the company and a very
unhappy customer. Mrs. Lyons stated the man while
in her home was very rude.
On 2/11/74 We scheduled a call on Mrs. Ogden's
washer. The work order clearly stated door open-
dogs chained. The call was scheduled for Lee Jackson.
Mr. Jackson called the home, received no answer and
went home without making the call. Failure to make
this call resulted in Mrs. Ogden calling us very angry
because she had left the door open and her dogs
chained up and the unit unrepaired.
On 2/14/74 In route to work on Thursday the front
motor cowling, (not shut right), blew off Mr. Jackson's
truck. He did not find the cover and came on in to
work. He was told by Mr. Templeton to find the cowl
and put it on his truck. Instead, he removed the cowl-
ing hood from other service truck and installed on his
and left on his first call. When this was discovered, he
was called back to the shop-told to go back and find
his own hood and installed on his truck and replace
the other hood on the other truck.
The action taken by Mr. Jackson was done without
approval of his supervisor and resulted in lost time
and expense to the Company. Reflected a total disre-
gard for following orders.
In view of the above I feel Mr. Jackson does not
Respondent 's statement of position during the investigation said that
Mrs. Hammond 's instructions not to deliver her set in her absence "were
noted on the dispatch sheet."
MONTGOMERY WARD & CO., INCORPORATED
conduct himself in the best interests of this Company
and should be terminated.38
Respondent's statement of position during the investiga-
tion, setting out what Regional Employee Relations Man-
ager Muir testified were "the reasons I was told by my
clients that they discharged Mr. Jackson for," mentioned
the same four incidents . However , that statement specified
only "three" of the items as "the cause of Mr . Jackson's
discharge," amounting to "his careless disregard of compa-
ny property, his rudeness to customers and his poor atti-
tude with regard to service work performed ," and treated
the Ogden item as "a further incident" or "further example
Mr. McNutt used to show Mr. Jackson why his perfor-
mance and attitude were bad and why he would be termi-
nated."
McNutt's direct examination substantially tracked his
written account (supra) as "the reasons why [he] fired Jack-
son," adding that the discharge occurred "after reviewing
the facts and discussing them with Mr. Jackson," and re-
ceiving certain admissions from him. On cross , however,
when asked to explain the extra increase given Jackson in
the face of Jackson's commission of at least one of the acts
asserted as a reason for discharge (the Hammond inci-
dent), McNutt testified that he "didn 't fire Mr. Jackson
because of his customer complaints ," 39 but solely because
of his insubordination in the hood incident; and he added
that one insubordinate act was enough and that he could
recall no case of insubordination where he failed to fire the
individual involved.
Jackson testified 40 that the day before his discharge he
asked Templeton what he thought of the Union and that
Templeton told him "not to say too much , it would get me
in trouble." During the week following Jackson's dis-
charge, according to employee Halley's testimony for Gen-
eral Counsel , McNutt told Halley, who he knew was a
cousin of Jackson 's, that the discharge had nothing to do
with the Union and that he wanted Halley to know that 41
In the same conversation , again according to Halley's un-
denied testimony , McNutt informed Halley that "he'd
called Kansas City 42 and got their approval" to fire Jack-
son.43
b. Panter
Panter, an outside TV technician , started with Respon-
dent in August 1972, and was discharged April 16, 1974,
after an April 12 incident , prior to which time, according to
his uncontradicted testimony , there had been no com-
plaints about the quality of his work . A synthesis of the
38 Jackson denied that McNutt read this account except , as stated above,
for a list of the incidents.
39 Adding, '7 haven't testified that I have."
40 Following a recess after General Counsel had announced the conclu-
sion of his direct examination.
41 McNutt had said the same thing to the employees as a group at the
February 20 meeting.
42 Company's regional headquarters.
43 Panter testified that he "recall[ed] very clearly" that McNutt stated at
the February 20 meeting that Jackson 's discharge was "from a directive
from Kansas City ." None of the other employees at the meeting corroborat-
ed this.
383
testimony of Panter and McNutt that I find credible re-
veals that on Friday, April 12, McNutt had assured a cus-
tomer named Allard that a technician would be out to look
at his TV set that day, whatever the hour; Panter, in his
regular afternoon call to the dispatcher with his progress
report for the day, indicated that he might not be able to
make two or three of his scheduled calls because he was
running late ; the dispatcher thereupon turned the phone
over to McNutt who told Panter that they could delay the
other calls but that Allard's set had to be serviced that day
because of McNutt's promise, and insisted on this notwith-
standing that Panter informed him that he had a social
engagement that evening and did not want to work over-
time ; 44 Panter assured him he would do it; Panter spent
about 20 minutes at the Allard home but accomplished
nothing; he had brought his toolbox into the house but no
equipment or repair parts 45 and did not even take the back
off the set; he explained to Allard that there was no reason
to remove the back because he had determined, by looking
at the set and feeling how the tuner turned, that it could
not be repaired there since it had tuner problems and had
to go into the shop and he told Allard he would turn in a
work order on Monday to have the set picked up; the set
had been in the shop a few days earlier and the tuner had
been sent out to a local contractor for repair, but was still
defective when it came back and the technician who
worked on the bench next to Panter "Mickey Mouse'd to
get it to work" before returning it to Allard; Panter "knew
it wasn't going to work out" but said nothing either to that
technician or to anyone else, either at that time or on the
day of his visit to Allard, although he "knew this for a fact
before [he] even went out there"; Panter was absent Mon-
day because of illness, but Allard called McNutt late Mon-
day afternoon to inquire when the pickup would be made;
McNutt told Allard he was unaware of any arrangements
about that, so Allard gave him an account of Panter's visit;
and McNutt, irritated because he believed no attempt had
been made to repair the set, promised to, and did, send an
inside technician out to pick up the set, and discharged
Panter the following morning.
Panter's account of the discharge interview was as fol-
lows:
Q. Will you tell us now all that you recall concern-
ing what was said to you and what you said to anyone
involved on that date concerning your discharge or
the reasons for it?
A. Yes. I came in Tuesday morning which was the
16th of April and Mr. McNutt called me to his office
and told me to come with my daily route sheet for the
12th of April and I said, "Yes, sir." So, I got my route
sheet and went to his office and he started questioning
me and asking me why I didn't take the back off of the
TV set and I told him it wasn't necessary that the TV
set had to come into the shop. It had tuner problems
and it was definitely a problem that would have to be
repaired in the shop and he explained to me that-
44 Panter testified he was told only to "make the call." McNutt testified he
told Panter to "make every technical , sincere effort to repair" the set
45 Panter testified that Respondent had failed to furnish him with equip-
ment that he had requested . Templeton testified that ample equipment was
available since January.
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Well, did he say something else?
JUDGE HERMAN : Why don't you let him finish the
answer.
THE WITNESS : OK. So, anyway , we talked about this
certain subject for just a while and he started telling
me you know , there's things going on around here that
are trying to mess up our operation , he said . Like work
orders disappearing , merchandise being moved from
one section to another , tags being switched and he
said , "How do I know you're not the one doing this"
and I said , "I am not the one , I assure you. I wouldn't
do anything like this ." I said, "I'm not this type of guy
and I couldn't do it." He said , "At this moment you're
terminated" and I said-let's see . I said, "Your firing
me for union activities and I know it and I 'm going to
try to prove it."
So I started walking out of his office and he hollered
back at me loudly and said , "Come back here." I
turned around and answered to him and I said, "You
fired me and I 'm going to get my stuff together and
leave."
So, I proceeded to go to the service technicians re-
pair shop-that department and he followed me like
rapidly and he said , "You either straighten up or I'm
going to see to it that you don't get a job anywhere
else" which was in front of other witnesses.
So, I kept kind of quiet and didn't say much. I was
already shook up over the whole matter and he said,
"Go ahead and get your stuff together and get out of
here." So, I went out to the truck with Bob Templeton
and emptied my personal belongings out.
Panter testified further that he then telephoned Gaskill to
ask what he should do, that Gaskill asked him why he had
been fired and he replied he had not been told, that Gaskill
instructed him to find out , so he went back to McNutt who
"wouldn't tell [him] at first" but then told him to check
with Personnel and still later told him the discharge was
"for not following company policy."
McNutt testified that in the discharge interview he read
to Panter, "line for line and word for word," the following
entry which he had prepared for Panter's personnel file:
On 4/12/74 Mr. Allard's TV set was scheduled for
Mr. Panter . Mr. Panter made the call but no attempt
to repair made in home . Tool box, caddy or any
equipment taken into home. Back was not taken off
unit or any attempt to correct problem made in home.
Customer was told we would pick set up Monday
4/15/74.
At 4 p .m. Monday 4/15/74, Mr. Allard called me
and asked when man could be by to pick set up as
promised. I told him I was unaware TV was to be
picked up because Mr . Panter had made no comment
to either myself or the dispatcher it was to be done.
Shop technician had to be dispatched to pick up
unit which caused disruption of his work and addi-
tional expense to the Company, plus Mr. Allard being
very unhappy.
Due to Mr. Panter's lack of basic routine checking
of the set in the home to determine if problem was or
could be repaired , while there, plus not advising the
management that unit needed to be picked up he has
been terminated this date . Reason being as listed
above.
McNutt also testified that,
... to me as a manager and as a former technician, it
was apparent that Mr. Panter had made no attempt to
follow my specific guidance in the repair of Mr.
Allard's television set. This , in essence, was insubordi-
nation , failing to follow my specific instructions. And
I terminated him on the spot.
and that this was the sole ground for the discharge; but
that Panter stormed from the room , loudly proclaiming
that he had been fired for his union activities , and McNutt
followed , telling him to cease his outburst and that an en-
try to that effect would be added to his personnel file,
which McNutt subsequently did.
Panter testified without contradiction that his "main
thing" was handling customer complaints on jobs that
other technicians "had goofed on before," 46 and that he
had been complimented on the quality of his work. He
received a 30-cent raise as part of the general increase in
February . He also testified-and this is uncorroborated-
that McNutt had announced at a meeting in January, at-
tended by about 20 service technicians , a three-stage disci-
plinary procedure by which a first offense involved a warn-
ing, a second an entry in the personnel file, and a third
discharge or other penalty.
Panter had joined the Union on February 7 and attend-
ed all its subsequent meetings . He also talked, with "several
others," to some of the employees, including Marie Green,
about joining or coming to meetings . He wore a union
sticker at the February 20 plant meeting where McNutt
could see it if he looked at him , which he did, but he also
looked at everyone else there , and it was on that occasion
when , as noted above , McNutt said he could "definitely
see we have a problem here."
c. Cockrell
Cockrell commenced working at Respondent's service
center in April 1965 as an outside service technician. He
was one of the main organizers in the bargaining unit in a
1968 drive by IBEW . He was the only union witness at the
representation hearing at that time , and, following the
union 's certification, was one of only two employees who
sat on its negotiating board in the bargaining sessions. He
became assistant service manager in 1968 but chose to re-
turn to the employee ranks . In the fall of 1973 he started
organizational activity again, this time for the Charging
Union , as indicated supra. He joined the Union on Febru-
ary 7, assisted in signing up other employees, and was the
Union's witness at the representation hearing herein on
March 21 . Meanwhile, his work performance had often
been praised by McNutt who respected his competence
and even sought to induce him to go "back into manage-
ment." Cockrell's share of the general wage increase was 35
cents an hour.
46 Jackson testified to Templeton's reliance on Panter uniquely for repairs
to electronic organs.
MONTGOMERY WARD & CO., INCORPORATED
He clocked in at 8 : 30 on March 21 and informed the
dispatcher that he would be testifying at the hearing that
morning and hence be unable to run his scheduled service
calls. She referred him to McNutt, who, according to Cock-
rell, told him that since he had failed to give adequate
notice he would have to run his calls , but, according to
McNutt, told him to prepare for his assignment but to wait
at the plant for final word on the matter , after McNutt had
an opportunity to talk to Muir, Respondent 's attorney and
regional employee relations manager, whom he was about
to pick up at his motel to bring to the hearing. When Mc-
Nutt arrived at Muir's motel he briefed him on the situa-
tion, and Muir offered to talk with Cockrell. So, about 30
minutes after leaving the plant , McNutt telephoned in and
asked Cockrell to talk with Muir whom he then put on the
line. Muir asked Cockrell if he had been subpenaed, got a
negative reply, indicated the difficult position in which de-
fendant was placed by the failure to give advance notifica-
tion of absence as required by Company "rules ," 47 and
concluded by saying that Cockrell had a right to attend the
hearing, but that if he did and thereby failed to make his
scheduled runs his neglect to give the required notice
would be entered in his personnel file. Cockrell did attend
the hearing and the file entry was made.
Cockrell testified that about March 28 McNutt called
him in from his route and said he was going to take
Cockrell's truck away and put him in the shop; that Cock-
rell asked the reason , and McNutt said he did not need a
reason and, as his boss , he could take anything away from
him, including his job; but that later that day McNutt told
him to resume his calls, and the next day told him to go on
as he had been doing. Although initially testifying that this
was the first occasion after March 21 that work deficiencies
or alleged deficiencies were called to his attention, he later
testified that almost every morning after March 21 McNutt
called him to the office where he "would be chewed out,
reprimanded or whatever, about a work order, the way I
had ordered a part, the way-how slow I ordered a part,
just numerous small things" like his handwriting , his fail-
ure to fill out work orders or time sheets properly, or
spending too much time in the parts department and with
the office girls .48 He conceded that the girls had asked him
what specific words were on his work orders but stated that
other servicemen were similarly questioned . Asked when
the first time was that McNutt criticized his handwriting,
he replied , "It seem like it was the last part of March
1974," but that such criticism came frequently thereafter.
McNutt denied ever telling Cockrell in March that he
could fire Cockrell any time he cared to, testifying he had
no reason to make that statement. He also denied any
"harassment or other intimidation " of Cockrell subse-
quent to March 21.
47 Cockrell denied knowledge of such a rule, and Respondent offered no
evidence of one other than Muir's and McNutt 's testimony . McNutt stated
it was in the "personnel manual," but when asked , "Which manual?" re-
plied, " I don't know , sir," On cross , Muir stated , " I didn't call it a 'rule.' It's
coTorate policy."
Cockrell testified that "many" servicemen spent more time than he
talking to the girls . He named three-Roy Halley, Henry Stout , and Don
Taylor, the last two of whom had refused to sign union cards.
385
On the morning of May 8, Cockrell was discharged.
Upon returning from a vacation on May 6, McNutt had
been informed by Templeton of a complaint from a cus-
tomer named Horner charging in essence, according to
Respondent 's statement of position in the investigation,
that on May 1 Cockrell had bungled a refrigerator repair
job, insulted the customer, and damaged his gate, which
led to his dog's running off.44 This was the first customer
complaint ever lodged against Cockrell, and Templeton
testified he "had no idea who was at fault" at the time he
related the matter to McNutt. McNutt phoned Horner,
apologized,50 and, contrary to his usual practice, asked
Homer to sign a statement which McNutt would send him
verifying the incident 51 Homer agreed, and this was done.
McNutt had scheduled a meeting of the servicemen in
his office for the morning of the 8th. Prior to the meeting,
McNutt testified, he told Templeton "to go with Cockrell
and bring in and check in all of the company tools and
equipment in Mr. Cockrell's vehicle, check it in and then
bring Mr. Cockrell to the front part of the building and
have him wait outside my office. I'm going to be holding a
meeting. And when that meeting is concluded, I want to
talk with both you and Mr. Cockrell." 52 McNutt testified
further that the meeting was in progress when Cockrell
"burst in" and loudly said that if he was going to fire him
he should do it in front of all the men and let them know
why; that he told Cockrell he was disrupting the meeting
and asked him to leave; that Cockrell left after first refus-
ing; that upon the conclusion of the meeting McNutt
called Cockrell and Templeton in, asked Cockrell to "put
49 Respondent's statement of position adverted to the dog as a "prize
show dog." The only evidentiary description of the dog was Horner 's which
identified it as "our pet dog, which is a little toy poodle , white , that sleeps in
the house on the foot of my wife 's bed." The statement of position also said
that it had cost Respondent "four hours in time to find the dog." Horner
testified they found the dog "after an hour or so, maybe two hours"
so .. . , as I usually end up doing in my discussion with customers," he
testified.
si Although McNutt testified this procedure was "[nlot unusual at all," he
conceded he had not used it in respect to any other employee in Oklahoma
City, including Jackson and Panter And after first testifying that there was
"[nlo particular reason" for using it in Cockrell 's case, he testified that there
was a reason for it, and the following colloquy ensued.
Q Why9 What was the reason?
A. This was a very serious complaint.
Q. What was9
A Mr. Cockrell with Mr. Horner.
Q All right Why?
A It was done in my absence-
Q What was done9
Juecs HERMAN' Please, Mr Eckhardt, let him finish.
THE WrrNEm• The infraction or the circumstances was done in my
absence . I tried to be extremely fair in whatever I did, so I wanted to
personally contact the customer and verify the seriousness of what I
considered this complaint to be And I think this is the reason why the
exception was made in Mr Cockrell's case I considered it serious. I
wanted , in this particular case , to verify this information myself, which
I did most cases in talking with the customer myself, as the head super-
visor of that department. I wanted to be sure that I was on firm ground,
that what happened did happen ; and that I treated my employees fair-
ly
si Although first indicating that collecting the tools and equipment was
just routine in preparing to discharge a man, McNutt denied that it amount-
ed to telling Cockrell he was fired . He explained that the same thing would
be done if a man were "reassig [ned] " There was no evidence of any plan or
intent to reassign Cockrell.
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out that foul smelling cigar ," Cockrell said, "Make me,"
and McNutt did not press it; that he started to read the
document he had had Homer verify , and Cockrell continu-
ally interrupted with denials until,
He again interrupted me, and I said , "Mr. Cockrell,
your attitude is extremely belligerent . You're inso-
lent." I said, "I consider this rank insubordination,
and if you continue , I'll have no choice but to termi-
nate you."
Mr. Cockrell said something to the extent of, "I think
that is what has been on your mind." I said, "I don't
know how you draw that conclusion ." But I said, "As
of this moment, you are now terminated . You're
fired."
Templeton's recollection of the interview on direct exami-
nation generally paralleled McNutt 's. But he added that
Cockrell said, "If you 're going to fire me , go ahead and fire
me," and McNutt replied that he had not intended to fire
him but only "to take some disciplinary action for this
complaint" but that in view of his "hostile attitude" he
would release him. On-cross , however, Templeton testified
that McNutt's announcement of the termination was for
Cockrell's "attitude or misbehavior . . . this morning, as
well as Homer's case , something to that effect. I'm not
sure ." But McNutt testified on cross-examination as fol-
lows:
Q. All right, thank you. What was the-I mean was
Mr. Cockrell fired for more than one reason?
A. I fired Mr . Cockrell for insubordination.
Q. Is that the only reason?
A. I fired Mr . Cockrell for insubordination.
Q. And that's the only reason you know of?
A. That's why I fired him.
Q. And no other reason?
A. That's why I fired him, for insubordination.
McNutt's entry in Cockrell's personnel file attributes the
discharge to "[t]he letter of complaint plus Cockrell 's atti-
tude during the review plus the disruption of my meeting."
Respondent's statement of position in the investigation,
however , says that McNutt decided to discharge Cockrell
on May 6 after talking to Homer , the reasons being
"swearing at the customer , abusive and belligerent conduct
toward the customer , damage to the customer's property,
and total failure to engage in courteous and proper cus-
tomer service ." 53 It then goes on to say that on May 8, in
view of Cockrell 's "storm[ing]" into McNutt's meeting with
the servicemen and his "loud and abusive " manner at the
discharge interview , McNutt "determined that there was
no point in trying to seek Mr. Cockrell 's position on the
matter and terminated him for insubordination. As such,
Mr. Cockrell was terminated for insubordination and for
the customer complaint."
McNutt conceded on cross-examination that he had
called a security guard to be at his office on the occasion of
the discharge interview with Cockrell although he had no
53 References in the preceding paragraph of that statement to Horner s
conversation with McNutt on May I are erroneous since Horner's May I
conversation there adverted to was with Templeton in McNutt' s absence.
"particular reason" therefor and had not done the same
when he discharged Jackson or Panter.
According to Cockrell , he was already at the
servicemen 's meeting when McNutt told Templeton to
leave with Cockrell to get the tools . His version of the dis-
charge interview was that McNutt offered to read what he
called a complaint on a refrigerator, which Cockrell testi-
fied he thought McNutt told him was a directive from Chi-
cago, that Cockrell declined the offer as unnecessary be-
cause "I know the reason that you are firing me," and that
McNutt said , "O.K., You just cut your own throat," 54 so
he left . He denied being loud or abusive , or that McNutt
said he was fired for insubordination.
Vernon Anderson , who still works for Respondent, testi-
fied as follows concerning a meeting he had in McNutt's
office at about 2 p.m. on May 8:
A. Mr. McNutt called me in . He said , "Vern," he
said, "the rumor is out that you are going to be fired;
and I want you to understand that that 's not true." He
said, "You do a good job, and you're not to be fired."
And then he asked me, he said , "What did you
think about the way Walt came in, storming and want-
ing to know why he was fired?"
And I said , "Well, sir, it's your business. But if it
had been me , I would have told him why." And he
said , "Well, that's not the way the company does
things ." And he said , "Besides that , I was 800 miles
away when he got fired ." He said, "I was on my vaca-
tion and-"
Q. What else about that matter , if anything?
A. That was about it.
Q. Did he indicate who had made the decision and
where it was made?
A. Well, he just said that it was made in Kansas
City. He said , "I didn't fire Walt ." We had talked
about-I told Mr . McNutt that I thought Walt was
one of the finest technicians we had . And he said, "I'll
have to agree ." He said, "He's a good technician."
Wade Rushing , since April 1974 a general technician at
the Oklahoma City service center, testified without contra-
diction that he was service manager at Ward's store in
Sherman, Texas , in March when he attended a 2-day dis-
trict meeting of service managers at Fort Worth , that while
standing in a lunch line at the Fort Worth store directly
ahead of Jim Hill, regional repair service coordinator,
whose region covers Oklahoma , Texas , Arkansas , and Lou-
isiana, Rushing asked Hill how things were in the Oklaho-
ma City area; that Hill replied that they were having a little
problem with a union and had some troublemakers there,
but that "as soon as they could get some of the trouble-
makers out, everything would straighten out in that area,"
and Hill mentioned Cockrell in that connection.H
Jay Cansler, a TV technician still working for Respon-
54 Templeton testified that Cockrell said "'You're digging my grave for
me,' or something to that effect," and that McNutt responded, "'No.
You're digging your own grave."'
ss Windell Helton , another service technician currently employed at the
Oklahoma City service center, testified that while he was service manager at
the Ardmore, Oklahoma , store about 2 years ago, the assistant manager of
that store told him that he had been instructed by Jim Hill to lay off two
employees , and this was done.
MONTGOMERY WARD & CO., INCORPORATED
dent, testified that on the afternoon of the day of the elec-
tion McNutt told him, "off the record, since this morning
I've got a lot of trouble off my shoulders, and I'm going to
have a lot more trouble off my shoulders just pretty soon,
and you know who I mean, Jay."
General Counsel adduced testimony from several wit-
nesses to the effect that prior to the Union's appearance
customer complaints had been lodged against them and
others in certain cases, none of which substantially resem-
bled any of the instant complaints, and that in some cases
the complaints were not noted in their personnel files after
they explained their positions to management . In this con-
nection, however, Halley and Cansler testified to numerous
customer complaints against Cansler , and Cansler testified
that one such incident during Gramberg's tenure as service
manager was written up in his file, even though he had
been cleared . Cansler also testified about a subsequent
complaint for which McNutt had said, in the same election
day conversation mentioned above, that he intended to put
him on probation, but that after talking awhile McNutt
decided to drop the matter. And finally, still in the same
conversation, Cansler testified, they discussed his having
done work on Cockrell's TV set "two or three weeks before
the election" in a manner contrary to company procedures
which McNutt also had initially viewed as a subject for
probation, but ultimately disposed of with a warning. This
incident was evidently written up by McNutt in Cansler's
personnel file on February 18. According to the file entry,
Cansler's action caused a loss of $110 in parts and $30
worth of company time on an unscheduled call and "re-
flect[ed] a complete disregard for company policies and
procedures and I feel complete grounds for termination."
A later entry on the incident countersigned by Cansler on
February 23 notes the warning.
Anderson testified that he could not recall a single dis-
charge because of customer complaints since he came to
the service center in 1969, and that he had had such com-
plaints, including one involving his calling the customer "a
fat-mouthed lady" after she had "cussed" him and "grab-
bed [him] by the arm."
McNutt testified that he was unaware of the union de-
sires of any of the technicians, including the dischargees,
before discharging them; that apart from his knowledge
that the Union was organizing, based on the bargaining
demand of February 8, he did not know that card signa-
tures were being solicited, and denied having been in-
formed by Marie Green that she had been so solicited. He
later testified that, although he lacked "knowledge," he
"obviously had some assumptions," but he then equated
the two, acknowledging such assumptions only as to those
he was "positive of," namely, Anderson, who had accom-
panied Gaskill to the plant on February 8, and later, Cock-
rell, who had accompanied Gaskill to a meeting at the
Board's Regional Office, evidently in connection with the
representation case.
Templeton, while acknowledging having participated,
before becoming a supervisor, in coffeebreaks at which
unionization was mentioned, testified that he "had no way
of knowing" whether any of the technicians favored the
Union or did not favor the Union "up to this very day."
387
B. Analysis
The foregoing factual recital makes clear that Respon-
dent was not favorably disposed toward the Union. What
is less clear is whether it translated this animus into unfair
labor practices and the degree to which it did so. Having
an important bearing on this was the concurrence of the
reorganization of the service center with the movement to
organize the employees, for much of Respondent's conduct
here under attack, which, absent another explanation,
would seem an unlawful reaction to the organization cam-
paign, is lawfully explicable, thus raising the question
whether it was attributable at least in part to the unlawful
motive; and the answer in my opinion is not the same in
respect to each item complained of by the General Coun-
sel.
1. Section 8(a)(1)
a. The wage increase
The evidence establishes beyond question that Respon-
dent instituted plans for a wage increase at the service cen-
ter prior to the Union's first bargaining request. The natu-
ral effectuation of such plans, moreover, even in the midst
of the organizing drive, would have been quite within
Respondent's legal rights. Cf. Mallory Controls Co., 214
NLRB No. 71 (1974). Indeed, as it properly contends in its
brief, the failure to carry out such plans just because of the
presence of the Union could have constituted an unfair
labor practice. The Deutsch Company, Metal Components
Division, 178 NLRB 616 (1971). The issue nevertheless re-
mains whether the wage increase announced on February
12, 4 days after the Union's request,56 was merely the cul-
mination of the raise initially contemplated by the Compa-
ny or a response at least in part to the Union's superven-
tion. I find it was the latter and hence violative of Section
8(a)(1).
Contrary to Respondent's position, the effectuation of
the raise here did not follow the program outlined in the
Trebesch memorandum. When it developed that the then
current wage scales did not fit McNutt's survey, correction
was not requested of Mr. Kerr in Kansas City. Mussatto
testified that he was the one to give final approval, every
step thereafter being a mere formality, and any delay the
result of essential paperwork. Nor were the adjustments
found to be "in order based upon time and service and
performance" because the amount of each employee's
raise, according to McNutt, depended entirely on his
grade, without regard to time and performance.57 More-
over, the record is completely silent to how the amounts
were arrived at. Mussatto's testimony simply is that he "ap-
proved" McNutt's recommendation of January 18. But
McNutt's recommendation was only "going to the GE
wage structure, though feel we should move up to the RCA
or Westinghouse rates." Obviously, since the RCA and
Westinghouse rates were not uniform, the recommendation
56 Including an intervening weekend.
57 I do not credit his denial , after some 3 months on the job , of any basis
for judging performance.
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lacked definitude. Indeed, the GE rate for grade 4 equaled
the Westinghouse rate and exceeded that at RCA; and the
GE rate for grade 3 + equaled RCA's. But even indulging
the assumption that the immediate recommendation
stopped at the GE rates, the amounts actually given the
employees did not fit the recommendation. Thus, Jackson's
initial raise was 30 cents which placed him 5 cents above
the comparable GE rate .58 Panter , a grade higher , also re-
ceived 30 cents which placed him 6 cents above GE's
rate 59 Anderson, at the next higher grade, received 30
cents too, 2-1/2 cents short of the GE rate 60 Nor did the
actual raises conform to McNutt's testimony of uniformity
within grade. Cockrell, though holding the same grade as
Anderson, got 35 cents, as did Halley (initially) whose
grade was the same as Panter's.
Furthermore, far from observing the provision in the
Trebesch memorandum of granting the increases "on a
one-month basis," the increases here, including the very
substantial ones to Jackson and Halley , were all made ret-
roactive to January 31. The conflicting explanations by
Respondent's witnesses for the selection of this date bolster
the conclusion that the granting of the raises on February
12 was a device to impede the Union's organizing effort
and hence in violation of Section 8(a)(1). Mussatto testified
that he and McNutt set February 1 as a target date because
that date was both the beginning of the fiscal year and the
launching date for the service center as an independent
installation. Absent other evidence, the actual effective
date of January 31 would then be reasonable, as Mussatto
also testified , because that was the beginning of a work-
week. However, McNutt evidently did not share
Mussatto's recollection since he admitted he had no expla-
nation for making January 31 the effective date. Moreover,
Muir's testimony was that the selection of that date had
been made by Zodrow in Kansas City because "That's the
date that he got it in his office."
Respondent's argument that other Ward facilities in the
area were also granting wage raises at that time is not per-
suasive because it rests entirely on Mussatto 's vague testi-
mony which fails to disclose dates, amounts, nature of the
recommendations or the grants, retroactivity or the pres-
ence or absence of union activity 61
b. Templeton's threat to Halley
As indicated above, there is no record evidence to cor-
roborate the longstanding existence of the no-solicitation
rule called to Halley's attention by Templeton, or any evi-
dence of a need for such a rule to maintain production,
5s And hence still 5 cents below Westinghouse 's and 10 cents below
RCA's.
59 Which meant 6 cents above Westinghouse's and 7-1/2 cents above
RCA's
60 It was 25 cents below Westinghouse 's and 27-1/2 cents below RCA's.
61 I do not credit the testimony that in response to a question from Cock-
rell at a meeting of all the servicemen in late January, McNutt stated that
there would be no increase until the service center was "in the black." The
only evidence of this came from Cockrell, Jackson , and Panter , the three
8(a)(3) complainants , while virtually all the employee witnesses who were on
the payroll on February 12 testified to the events of that date . Such a state-
ment by McNutt would have been contrary not only to company plans but
also to his own recommendation of January 18.
order or discipline. Even a presumptively valid rule may
not be promulgated for a discriminatory purpose, and the
circumstances behind the promulgation of the rule, partic-
ularly the timing and manner of its issuance, and the ab-
sence of a showing of valid need therefor, indicate a pur-
pose to inhibit union activity. Cf. The Wm. H. Block
Company, 150 NLRB 341, 342-343 (1964). I therefore find
its promulgation unlawful and Templeton's warning to
Halley, based thereon, violative of Section 8(a)(1).
Respondent sought to show the friendliness of the warn-
ing, but even assuming such an attitude on Templeton's
part, Section 8(a)(1) is designed to prevent inhibition of the
free exercise of Section 7 rights, and the expression of a
friendly solicitude for the employee's welfare can some-
times be more inhibiting than an outright prohibition.
Templeton's position was such that the employees would
expect him to know the seriousness with which a violation
of the rule would be viewed even if Templeton himself
might sympathize with the rulebreaker.
c. Templeton's alleged surveillance
I do not credit Templeton's denial that he saw Anderson
handing anything to anyone. Even the casual observation
to which he admits would doubtless have disclosed some
such activity. On the other hand, considering the time peri-
od involved and Anderson's normal routine , I am unable
to find the lengthy concentrated scrutiny testified to by
Gaskill and Anderson. Anderson's testimony that he saw
Templeton hold the door open for each employee entering
was an essential ingredient of his alleged observation of
Templeton, yet it was not corroborated either by any of the
employees or by Gaskill himself, who also testified to his
own fairly constant observation of Templeton. In all the
circumstances, including the location and openness of the
distribution of the stickers, I find the General Counsel has
failed to carry his burden of proving that Templeton en-
gaged in unlawful surveillance. See Precision Products &
Controls Inc., 160 NLRB 1119, 1120, 1123 (1966); Sayers
Printing Company, 185 NLRB 837, 844 (1970); Read's Inc.,
205 NLRB 302 (1973).
d. The changed working conditions
There is ample evidence that McNutt sought to enforce
certain working conditions which either were new or had
been left dormant by his predecessors. However, although
much of the testimony indicates that McNutt's efforts in
this direction did not commence until after the Union's
appearance on February 8, there was considerable uncer-
tainty as to just when it started after that date. On the other
hand, McNutt and Templeton testified to McNutt's em-
barking on this campaign almost immediately after his ar-
rival in October. And Cockrell, Jackson, and Panter men-
tioned some conduct by McNutt along this line in January,
while Panter also mentioned McNutt's announcement at
his very first meeting of his determination "to do all he
could, regardless of us to [put the service center] in the
black." Similarly, despite some testimony that enforcement
of these working conditions ceased as soon as the election
was over, Cockrell and Anderson testified that at least
MONTGOMERY WARD & CO., INCORPORATED
some of these allegedly new conditions survived the elec-
tion.
There is employee testimony confirming that McNutt
explained the need for many of these rules as he an-
nounced them , and the reasonableness of virtually all these
conditions, even unexplained, is fairly apparent 62 Crucial
in this connection , moreover , is McNutt's strong desire to
make good as the new manager of an establishment suffer-
ing from economic woes evidently due to some extent to
poor management . McNutt impressed me as a forceful in-
dividual not likely to sit back for 4 months, as General
Counsel would have it, without attempting to remedy some
obvious sources of the poor conditions he inherited as
manager.
In all the circumstances, I conclude that McNutt's cam-
paign to change existing work habits and practices com
menced before the Union's drive and was in no way attrib-
utable to it.
e. The ban on stickers
The ban on stickers did not apply to personal clothing
but was confined to company uniforms or other company
property like toolboxes and trucks. Respondent argues for
the validity of the prohibition "in light of the nature of the
service center 's business and the constant exposure these
men and their equipment have to members of the public."
The difficulty with this defense , however, is that it ignores
the extent to which the ban applied to the inside techni-
cians. It is precisely for this reason that Respondent 's reli-
ance on United Parcel Service, Inc., 195 NLRB 441 (1972),
is misplaced since the Board there found a similar prohibi-
tion valid only because its application was limited to out-
side employees and, even as to them , only "when they were
exposed to customers and the general public." I according-
ly find the warning here to have violated Section 8 (a)(1).
f. McNutt's alleged threat to Dees
Although I believe Dees' testimony to have represented
his honest recollection , the qualification of that testimony
on cross-examination , together with the probabilities of the
situation tend to confirm McNutt's denial so as to negate a
violation . Dees conceded on cross that on the occasion in
question McNutt might have repeated only what he had
said on other occasions, i.e., that the Company "would bar-
gain very hard." And his "underst[anding]" that McNutt
said that he would not sign a contract reflected an unrealis-
tic view of the bargaining mechanics by which McNutt
would never have occasion to sign a contract, that function
being performed entirely by others. If, as I believe, Dees
misunderstood who would not perform the act mentioned
he could very probably have also misunderstood the nature
of the act.63
62 Indeed , a rule like keeping the men out of the various offices seems but
a natural consequence of and plainly in furtherance of, the economic rea-
sons underlying the separation of those offices in the reconstruction project
already underway when McNutt came.
63 Misunderstanding in respect to oral statements presents a peculiarly
difficult problem in this field where legality frequently depends on fine
distinctions in the words used . Indeed this very case offers an illustration of
389
g. Chavez' wage payment for April 25
McNutt's statement to Chavez indicating his preference
for a negative vote the following day did not of itself vio-
late the Act. Howard Manufacturing Company Inc., 180
NLRB 220, 221 (1969). Nor, absent evidence of disparate
treatment, do I find a violation in the fact that he was paid
for his time on the clock on the morning of the election 64
2. Section 8(a)(3)
a. General
Except for Cockrell this is not a case of an employer's
selection of outstanding union partisans . Two of the three
individuals discharged here were not particularly active in
the Union 's behalf . They had done no more than join, at-
tend meetings and talk to a few other employees, as did
several others, and the record does not disclose that the
average union adherent did less. Nor does it disclose any
greater evidence of company knowledge of their union ac-
tivity except insofar as they had solicited employees like
Marie Green who might be deemed likely to have fur-
nished Respondent such information; and even this failed
to mark them as more devoted to the union cause than the
"several others" who Panter conceded "were [also] in-
volved" in the solicitation . 65 What General Counsel 's theo-
ry seems to be in respect to Jackson and Panter is, that just
as Respondent allegedly effected other changes in employ-
ment conditions because of the Union 's appearance (treat-
ed supra), so did it change its method of handling customer
complaints and other misconduct charges against employ-
ees by depriving them of an opportunity theretofore af-
forded , to explain away the charges and by "depart[ing]
from a policy of human understanding in these matters
and [going] from a position of tolerance , from condona-
tion, from compassion to a position of strictness, unreason-
ableness and absolute discrimination ." Such changes, to-
gether with the shifting reasons given by Respondent for its
actions , demonstrate that the discharges were discriminato-
rily motivated.
Keeping in mind the General Counsel 's burden of proof
I do not find the evidentiary base for a finding of unlawful-
ness in the alleged changes , either procedural or substan-
tive , in handling misconduct charges against the employees
insofar as Jackson and Panter are concerned. Contrary to
the General Counsel , neither Jackson nor Panter appears
a misreading of the printed word in Anderson 's description , supra, of the
no-solicitation rule in evidence.
64 In view of the absence of any allegation in the complaint concerning
Muir's speeches and the General Counsel's disavowal at the hearing of any
purpose in adverting thereto other than to show animus , I make no finding
as to whether Muir's remarks violated the Act.
65 Cockrell started to name employees other than himself engaged in soli-
citing cards, but after naming Anderson , Halley, and Jackson was told by
General Counsel that that was enough . Certainly the smallness of the plant,
the wearing of stickers on February 20, and Templeton 's knowledge gained
from his admitted attendance at coffeebreaks when unionization was dis-
cussed , all of which tend to discredit McNutt's and Templeton's denial of
such knowledge , are equally applicable to all the union supporters ; perhaps
even more applicable to Cansler , for example , since the wearing of stickers
is unavailable to establish knowledge in respect to Jackson whose discharge
occurred on February 19.
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to have been denied the opportunity to present his side.
Panter's testimony makes clear that he did discuss his case
with McNutt during the discharge interview and, other
things being equal , I see no reason why McNutt would
have provided Jackson less than Panter . However, Jackson
admitted explaining the Hammond incident to McNutt on
the day it happened; admitted that Templeton told him
about Anderson 's having to correct Jackson's work in the
Lyons matter, which had afforded him an opportunity to
explain ; and testified that he had discussed the hood inci-
dent with Templeton on the day it occurred.66
Moreover, the evidence does not show that the preunion
practice was invariably to afford an opportunity to explain
away a customer complaint, but only that it was done in
the few instances testified to, and , as noted, Panter was
certainly given such an opportunity here . To the extent
that the making of file entries of customer complaints may
have constituted a change in the prior practice, I have
found above that other changes instituted by McNutt were
free of taint and perceive no ground for a different result
here . Indeed, the evidence is too varied to establish a
change in the practice of making file entries, and its con-
fusing character in this regard is perhaps best manifested
by the General Counsel 's conflicting positions in the mat-
ter. Thus, at the hearing he insisted that before the advent
of the Union a reprimand would be entered and "would
stay in the file" even after the employee was exonerated
following the presentation of his defense . But in his brief
(p. 3) he states that before the Union 's arrival "respondent
tolerated . . . customer complaints of all kinds , and in fact,
considered them so insignificant that it didn 't even bother
to keep written records concerning them ." As for the al-
leged change from compassion to strictness , this is unde-
monstrable save in a context of substantially comparable
misconduct not present here.67
In this connection , I have not overlooked the evidence
indicating an absence of precedent for discharge over cus-
tomer complaints . But I have kept in mind McNutt's ulti-
mate position that the instant discharges were for insubor-
dination and, perhaps even more important, his awareness
of his special situation as the new service manager assigned
to remedy a bad financial condition and that he was oper-
ating under a general directive from Kansas City head-
quarters "to secure the best people in town" as well as
District Manager Mussatto 's injunction "to take a good
look" at the employees and get rid of "losers ." It is essen-
tial to remember that in his very first meeting with the
technicians, according to Panter , McNutt expressed his de-
termination "to do all he could, regardless of us," to put
the service center "in the black."
The specific facts relating to Jackson and Panter lend
further support to a finding of insufficiency to the allega-
tions that their discharges violated the Act.
b. Jackson
As indicated above , no reason appears for Respondent's
choosing Jackson rather than any other union supporter if
its motive was unlawful . Even if Jackson's misconduct
might be deemed to have provided a seemingly reasonable
pretext, Cansler's case furnished an equally ready handle,
as McNutt would surely have felt when he noted "com-
plete grounds for termination " in Cansler's file entry made
just a day before Jackson's discharge. Cansler had joined
the Union either the same day or the day after Jackson
did 6s According to Anderson, Cansler had voiced his pro-
union sentiments in the presence of Templeton . I also find
him to have worn a union sticker at the February 20 meet-
ing, based on Cockrell 's testimony that all but two or three
of the technicians did. His work on the Cockrell TV, which
involved doing a favor for one of the two principal union
adherents ,69 and "grounds for termination ," occurred the
same day as Jackson's Lyons and hood incidents. He also
had numerous customer complaints. The difference was
the insubordination inhering in Jackson 's failure to obey a
direct order in the hood incident.
I am aware of the adverse inferences that might normal-
ly be drawn from the shifting grounds advanced by Re-
spondent for Jackson 's discharge , or from what I regard as
the palpable falsity of certain testimony from Respondent
including McNutt's initial denial (later retracted) that he
knew of even Cockrell 's union desires prior to his dis-
charge , or his statement that he had "no basis" for know-
ing the quality of Jackson's work at the time of the wage
raise although he had been the manager for almost 4
months; 70 and Templeton's extravagant testimony that he
"had no way of knowing" of the union attitudes of any
employee "up to this very day." But such inferences cannot
suffice where the record as a whole fails to support a case
for discrimination . Cf. Peabody Coal Company, 197 NLRB
826, 827 (1972).71
The General Counsel's brief (p. 3) deems it "highly sig-
nificant . . . that 3 of the 4 alleged reasons for [Jackson's]
discharge occurred before he was given an additional 35
cents per hour raise for `doing a good job."' This is a mis-
statement of fact . The only incidents preceding the raise
were the Hammond one, as to which Jackson knew he was
violating company procedure, and the Ogden one which
occurred on February 11 and probably had not reached
McNutt's attention by the morning of February 12. As to
how good a job he had been doing, it is pertinent to consid-
er that Anderson, a solid union man, had found him at
fault in the Lyons incident, and that Cockrell had not de-
nied Templeton's testimony that he was one of the ser-
vicemen who complained about having to follow up on
66 For the most part he did not deny the factual allegations involved in
the various incidents.
61 The closest the evidence comes to this is Anderson 's account of the
incident in which he called a customer "a fat-mouthed lady." His remark,
however, had been provoked by her "cuss[ing]" him and grabbing his arm.
" His membership card, like his bargaining authorization, are dated Feb-
ruary 8, but the checkoff card simultaneously signed is dated February 7.
General Counsel adduced no testimony, from Cansler or anyone else, con-
cerning the full extent of his union activity.
69 The other being Anderson.
7e That the 6-month period had not yet elapsed for a formal rating under
Respondent's rating program did not interfere with McNutt 's natural pow-
ers of observation.
71 It is a sad fact of life that people lie even when they do not need to but
because they feel that a valid case would be aided by exaggeration.
MONTGOMERY WARD & CO., INCORPORATED
Jackson's work .72 Moreover, if Respondent had set out to
"get" him, it does not seem reasonable that it would either
have given him the extra raise or praised him at the time;
McNutt could simply have told him , as he testified, that
Respondent was only fulfilling a promise as it also did for
Halley, another union man and perhaps more of an activ-
ist. Such praise was especially unnecessary if Jackson's fur-
ther testimony , also relied on by General Counsel, is cred-
ited that Babbs told him at the time , "But we expect you to
be a loyal employee and not a follower from this point on."
I do not credit the statement . There is no evidence of any
"disloyalty" on Jackson's part during the next week.73 The
only visible precipitating cause for his discharge was his
additional misconduct culminating in what McNutt viewed
as intolerable insubordination.
General Counsel deems "almost conclusive evidence" of
discrimination McNutt's alleged statement that he would
not prevent Jackson from working for any other Ward
store (br. p. 3). I see this , however, as at once lending fur-
ther support to McNutt's special concern for his peculiar
position as the new manager obliged to improve the
center's financial posture; and as tending to negate Gener-
al Counsel's broadbrush view that Jackson's discharge was
not McNutt's decision but only part of Ward's entire cen-
tral headquarters' antiunion campaign . The only evidence
of such possible outside control was Panter's testimony
that McNutt had said at the February 20 meeting that
Jackson 's discharge was "from a directive from Kansas
City," which I do not credit because it is uncorroborated
by a single other witness although testimony about the
February 20 meeting other than Panter's made reference to
remarks by McNutt about Jackson's discharge; and
Halley's testimony that McNutt told him he had called
Kansas City about Jackson and gotten its approval for the
discharge . Even if Halley's statement were credited, this
does not mean that Kansas City made the decision . It is at
least equally consistent with a manager 's simple precaution
against inviting a charge of violation by checking with
company experts before discharging anyone following a
union's appearance74
c. Panter
Panter's discharge raises the same question as Jackson's:
Why did Respondent pick on him ? Indeed, the question is
more acute , because if Panter was the kind of troubleshoot-
er the General Counsel sought to portray, Cansler would
have made an even better alternative here than vis-a-vis
72 It is certainly difficult to credit Jackson 's testimony that McNutt had
told him , in announcing the wage increase , that he was thinking of sending
Jackson , who was only a grade 3, to a service manager school.
73 The only evidence possibly looking in that direction is Jackson 's belat-
ed testimony that he asked Templeton on the day before his discharge what
he thought about the Union and that Templeton told him "not to say too
much , it would get me in trouble ." Not only would such inquiry not even
remotely suggest disloyalty over loyalty, but I discredit the testimony in any
event.
74 Although not specifically argued in his beef, I assume General Counsel
offered the evidence of statements by McNutt that the Union had nothing
to do with Jackson 's discharge as a case of protesting too much. I believe,
however, this evidence is just as consistent with an attempt in the midst of a
unionizing campaign to disavow the use of unlawful methods while discour-
aging membership lawfully.
391
Jackson. Moreover, there was no shift in Respondent's ex-
planation in Panter 's case . In the statement of position to
the Regional Office, it was "complete disregard of instruc-
tions"; the entry in his file which must be read in light of
McNutt's order to go to the Allard home that night against
Panter's will, noted the "lack of basic routine checking"; 7s
on direct examination, McNutt testified that "no attempt
to repair had been made" and hence "no attempt to follow
my specific guidance" which "in essence, was insubordi-
nation" ; and on cross, "He didn't follow my guidance."
Hence this was another case of insubordination, this time
peculiarly compromising McNutt's position by reason of
his personal involvement through his conversation with Al-
lard.
While it may not have played a part in McNutt's deci-
sion to discharge Panter because he was probably unaware
of it at the time , a fact disclosed by Panter's testimony is
noteworthy: Whatever the instructions given Panter, Mc-
Nutt had certainly impressed on him the urgency of his
visit to Allard. Yet Panter utterly failed to inforin McNutt
of his knowledge of the impossibility of repairing the set in
Allard's home. The totality of the evidence necessarily
leads to the conclusion that Panter knew at the very mo-
ment when he got his instructions to go to Allard's home
that he would not even attempt the repair and that McNutt
must have believed the contrary 76
d. Cockrell
(1) The discharge
Cockrell's case is quite different. He was admittedly the
ablest technician at the service center. He was also one of
the two leading union proponents and Respondent knew it.
Moreover, the evidence establishes, in my opinion, that
McNutt's ultimately avowed reason for firing him was
false because the alleged insubordination at the discharge
interview came after the decision had already been made.
Bearing in mind Trebesch's concern over the "difficult[y]
to staff [repair service departments] with good people and
hold them," it is a fair inference that only the most compel-
ling reason would have moved Respondent to discharge as
competent a technician as Cockrell, particularly in light of
McNutt's own interest and efforts to improve the center's
economic position. Yet the evidence shows that McNutt
decided to effect the discharge on the basis of the Horner
incident before affording Cockrell an opportunity to relate
his side 77 and despite Templeton's uncertainty as to the
merits. The evidence also shows Respondent's investigative
procedure to have taken the unprecedented turn of obtain-
75 I credit McNutt's testimony, as far more probable, that his instructions
were to make a sincere effort to repair the set rather than merely "to make
the call," as Panter testified.
761 do not credit Panter's testimony that McNutt announced a three-step
disciplinary procedure in January since he was the only one of the some 20
technicians he said were in attendance who so testified.
77 In addition to the facts that McNutt ordered Templeton to remove all
company tools and equipment from Cockrell's truck prior to the discharge
interview, something not usually done despite McNutt' s vague statement
(which I discredit as contrary to all the evidence) that it was company
procedure, and that McNutt took the extraordinary step of arranging for the
presence of a security guard , Respondent's own statement of position ac-
knowledges that the decision was made on May 6.
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the customer's signature on a statement drafted by Mc-
Nutt . The explanation for this departure from the usual
practice, after McNutt's initial denial of any "particular
reason" for it, was his absence at the time of the incident
and its seriousness . But he had not used the device in the
case of Jackson who had at least two serious customer
complaints that also occurred in McNutt 's absence.
While there is no need to resolve the substantive merits
of Homer's complaint in view of McNutt 's testimony at
the hearing that the discharge was just for insubordination,
it is pertinent for credibility purposes to note the misstate-
ments (fn. 49 , supra) in Respondent 's written statement of
position given to the Regional Office during the investiga-
tion of the instant case . What the record thus shows are
misstatements to support a discharge for customer com-
plaints followed by an assertion of the mixed motive of the
customer complaints and insubordination, culminating in
McNutt's testimony confining the motive to insubordina-
tion.
To cap the climax , the "insubordination" is difficult to
perceive . On McNutt 's own testimony, after telling Cock-
rell that he was "belligerent" and "insolent," which Mc-
Nutt deemed "rank insubordination ," McNutt threatened
to terminate him "if you continue"; and it was only
Cockrell's reply, "I think that is what has been on your
mind," that precipitated the discharge . Not only did
Cockrell's reply , uttered in the privacy of McNutt's office
with only Templeton present, not amount to insubordina-
tion-it happened to be accurate by Respondent 's own ad-
mission . Since the alleged insubordination stemmed from
Cockrell's unwillingness to listen to the reasons for his dis-
charge it could hardly provide an additional-now indeed
the sole-ground.
Unable , accordingly , to accept any of the varying bases
asserted by Respondent, I find in all the circumstances that
Cockrell's discharge was due to his union activity. This
conclusion is fortified by Wade Rushing's uncontradicted
testimony of his conversation with Jim Hill while they were
attending the service manager's conference in Fort Worth.
In this connection I also credit Anderson's statement, not
specifically denied by McNutt, that McNutt told him on
May 8 that the decision to fire Cockrell came from Kansas
City.
(2) The March 21 incident
I find no independent violation in respect to the warning
placed in Cockrell' s file on March 21. I do not credit Cock-
rell that McNutt ordered him to run his calls because of his
failure to notify Respondent in advance that he was to
testify at the hearing. It is highly unlikely that McNutt
would have done this without consulting Muir who was so
handy. Much more probable was McNutt's account that he
told Cockrell to stand by until he got further word. The
fact is that the subsequent events of that morning bear out
McNutt's testimony. Cockrell did remain at the center
where he was called by Muir, he did ultimately attend the
hearing, and the entry which Muir had warned him of was
put in his file.
Although I find no such company rule as Muir and Mc-
Nutt testified to but which Muir later said was company
"policy," I cannot imagine a company practice that would
permit such absences, without notice by employees not un-
der subpeona and obliged to make service calls, to go un-
challenged, and a warning against repetition in the future
does not appear unreasonable. While the right to testify at
a Board hearing enjoys special protection, its exercise
must, like other rights under the Act, accommodate to the
employer's right to maintain production and efficiency. Cf.
East Tennessee Undergarment Company, 139 NLRB 1129,
1134-35 (1962). Nor, in all the circumstances , do I find the
evidence sufficient to establish that this incident entered
into Respondent's calculations in discharging Cockrell. I
therefore find no violation of either Section 8(a)(1) or
8(a)(4) in this respect .78
3. Bargaining order
Although Respondent was clearly within its rights in re-
fusing to recognize the Union and insisting on an election,
its preelection unfair labor practices prevented the election
from representing the free will of the employees, and the
election must therefore be set aside. Moreover, those unfair
labor practices together with Cockrell's subsequent dis-
charge were so extensive and serious as to render unlikely a
fair election in the future. In such circumstances, a bar-
gaining order is warranted if the Union had card authori-
zations to bargain from a majority of the employees in the
unit. N.L.R.B. v. Gissel Packing Co. Inc., 395 U.S. 575, 600,
610-611, 614-615 (1969).79 The Union did in fact possess
such cards from 16 of the 31 employees in the unit on the
day of the election,80 so that the crucial issue concerns the
validity of certain of those cards. In this connection, Re-
spondent raises three points all of which lack merit.
a. The February 7 cards
It contends, first, that the cards signed at the meeting on
February 7 were tainted by Gaskill's statement to the em-
ployees that employers "very seldom" grant recognition
upon a demand based on cards, that he had "never been
fortunate enough" to have it happen to him, and that he
was "almost positive" Respondent would refuse recogni-
tion without an election. Respondent urges that the above
statements "effectively destroyed whatever purpose the
78 I do not find any violation in the alleged 8(a)(1) harassment of Cockrell
after March 21. I see no reason why McNutt would have called him in from
his route, threatened to take away his truck, and then restored him to duty.
The alleged work order harassment does not appear to amount to anything
more than McNutt had been doing since before the Union's appearance,
even on Cockrell's testimony. As for the criticism for spending excessive
time with the office girls, it appears that of the three men Cockrell named as
spending more time with the girls (presumably without criticism), one was
Halley who was also a good union man.
79 Contrary to Respondent, a demand for recognition is not essential for
a Gissel remedy. Unaflex Rubber Corporation, 216 NLRB No. 102, fn. I
(1974). And since no 8(a)(5) violation is alleged, it is immaterial that the
demands here did not accord with the unit found appropriate in the repre-
sentation proceeding or that the Union lacked a majority as of the date of
such a demand.
so Three additional cards were offered in evidence and rejected. One, of-
fered by General Counsel, was dated May 29, and the other two, offered by
the Union, were dated October 2 and 14, respectively. There was no show-
ing of the unit complement on any of such dates.
MONTGOMERY WARD & CO., INCORPORATED 393
cards had as an expression of the employees ' authorization
that the Union represent them for collective bargaining." I
disagree . On their face the cards expressed a single pur-
pose , to authorize the Union to represent the signers in
bargaining . Such expression can be ignored only if the em-
ployees are told that the cards are to be used solely for the
purpose of obtaining an election. N.L.R.B. v. Gissel Pack-
ing Co., supra at 584, 606. And although a finding that such
a representation has been made does not depend on the use
of the precise words, "sole" or "only," "there is nothing
inconsistent in handing an employee a card that says the
signer authorizes the Union to represent him and then tell-
ing him that the card will probably be used first to get an
election." Id. at 606-608. (Emphasis supplied .) A fortiori,
there is no inconsistency where , as here , the employees are
told that the Union would petition for an election "if the
company refused recognition ." So long as the employees
were informed that the cards could be used for obtaining
recognition-indeed , that that was their primary purpose-
their validity for purposes of a bargaining order was not
undermined by the statements that the grant of recognition
was very improbable. Any other result would mean that an
employer's full exercise of his privilege to insist on an elec-
tion would inhibit the Union's freedom to truthfully in-
form the employees of the possible use of their designation
cards.
The intended use of the cards here for bargaining pur-
poses was clearly manifested in any event by the employ-
ees' decision at the same meeting to have Gaskill and An-
derson request recognition the following morning.
b. Thomas' card
Respondent next argues that the card of the dispatcher,
Candace Thomas,st was invalidated by Halley's statement
to her "that they had to have a certain amount of cards
signed in order to have a vote by the employees of Mont-
gomery Ward, to decide whether the Union would be tak-
en into the company."
Thomas testified that she had read the card "carefully"
before filling it out and signing it . Respondent nevertheless
contends that the card is invalid because nothing was told
her other than it was "to have a vote." The applicable case
law is all to the contrary. See Federal Stainless Sink Div. of
UNARCO Industries, Inc., 197 NLRB 489, In. 1, 494
(1972); Levi Strauss & Co., 172 NLRB 732, 740 (1966);
Crawford Manufacturing Company, Inc., 161 NLRB 989,
1024 (1966). Medley Distilling Company Inc., 187 NLRB -84
(1970), relied on by Respondent, in fact supports the other
cases . Id. at 85, In. 8.
c. Huckaby's card
Respondent's final contention is that Wayne Huckaby's
81 Receipt of this card in evidence was deferred because of some doubt as
to the date of April 10 which was typed in while the rest of the information
was handwritten . The testimony shows , however, that Gaskill had put the
date in upon discovering the omission while going over his card on the day
he received it, and that the date was appropriate. The card is accordingly
hereby received.
card, like that of Thomas, was rendered invalid by the fact
that "nothing was told Huckaby about the purpose of the
card other than it was to `get enough votes."' The argu-
ment rests on the following testimony of Huckaby:
THE WITNESS: When it started, they was going to try
to go union and so they wanted to know if I'd sign the
card authorizing to get enough votes to vote for the
union to get it in . And I told them I would sign a card.
JUDGE HERMAN: Well, who told you anything about
the card?
THE WITNESS: Oh, I don't remember. There was sev-
eral of them told me about it-of the employees there.
And Mr. Anderson brought the card by my house,
and I signed it for him.
JUDGE HERMAN: What did Mr. Anderson tell you?
THE WITNESS: To my knowledge, I wasn't that inter-
ested in it, but to the best of my knowledge they told
me they was going to take it to a vote and see if they
could get the union in.
However, on cross, after stating that he had not discussed
the substance of his testimony with company counsel at
any time before taking the stand, even during their drive
together to the courthouse, he testified as follows:
Q. (By Mr. Eckhardt) Was Mr. Michas interested
in finding out the circumstances under which you
signed GC-44?
A. Well, he might have been.
Q. Well, what did he say in that regard?
A. That I can recall-I don't even remember. I
didn't pay that much attention.
Q. But it just happened this morning, Mr. Hucka-
by.
A. Well, I don't remember what I say for two hours
ahead of time, unless it's something special. If it's spe-
cial, I might. But that wasn't nothing special to me.
Q. You don't regard then signing a union authori-
zation card as something special?
A. Well, I was doing it for the crowd.
Q. You were doing what for the crowd?
A. If they wanted a union , why let them get it.
Q. You mean you're "wishy-washy"?
A. It didn't make me any difference.
Q. I see. So-but if I asked you exactly what was
said when you were given this card, you wouldn't be
able to- tell me , would you?
A. No, I would not.
Q. And you don't know, whether an election was
mentioned or authorization was mentioned, or mem-
bership was mentioned, do you?
A. All I know is they said they was going to get an
election if they got enough votes-cards.
Q. Why do you remember that?
A. Well, I don't know why.
Q. But you just remember it. But you can't tell me
why?
MR. MICHAS: I'll object to why he can't recall some-
thing.
JUDGE HERMAN : Sustained.
Q. (By Mr. Eckhardt): Can you explain why the
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
word "election" now stands out in your memory and
nothing else does?
MR. MICHAS: Objection.
JUDGE HERMAN : How does that word come to your
mind?
THE WITNESS: You mean "election"?
JUDGE HERMAN: Yes.
THE WITNESS: Well, I don't know. It just-union
procedures that they go through, I guess ; and they
hand the cards out, they get so many to sign them and
then they can bring up an election to see if it goes
union. 82
Although Huckaby signed all the cards in blank and An-
derson thereafter completed them at Huckaby 's request be-
cause of his impaired vision, Anderson testified credibly
that he briefly explained to Huckaby the nature of each
before he signed.
Even if Huckaby were credited and his faulty memory
overlooked , his testimony at most was that some unidenti-
fied employees told him that his signing the card would
somehow help get enough votes to get the Union in. Such
testimony, however, indicates that his signing the card was
for the purpose of "getting the union in," and thus offers
an even stronger basis for counting his card than in cases
like Crawford Manufacturing Company and Levi Strauss &
Co., supra, where the signatures were sought simply to
"have a vote on the union ," or "to get an election ." Adding
this to Anderson 's undenied testimony that he explained
the nature of the card, which, absent evidence to the con-
trary, must be assumed to have reflected the statement of
purpose on its face, I find no basis whatever for not count-
ing Huckaby's card.
IV. THE ELECTION OBJECTIVES
In view of my determination that the election held on
April 26 should be set aside, and my recommendation for a
bargaining order , a new election is not warranted herein,
and I recommend that the Union's petition in Case 16-
RC-6526 be dismissed and all prior proceedings held
thereunder be vacated.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) of the Act by
coercing its employees in the exercise of their union activi-
ties.
4. Respondent has violated Section 8(a)(3) of the Act by
discharging Walter Cockrell for his union activities.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
83 Huckaby was "almost positive " he had signed only the one card and
had no recollection of signing the membership and checkoff cards on the
same occasion , even after they were shown to him on the stand.
6. Respondent did not violate the Act by its discharge of
Jackson or Panter.
REMEDY
In order to remedy the unfair labor practices found here-
in, my recommended Order will require Respondent to
cease and desist therefrom and, in view of their serious
nature and variety , to cease and desist from infringing
upon the Section 7 rights of its employees in any other
manner . Moreover, in order to effectuate the policies of the
Act, and more particularly for the reasons set forth in the
section , supra, entitled "Bargaining order ," my recom-
mended Order will require that Respondent bargain collec-
tively and in good faith with the Union upon the Union's
request . I shall further recommend that Respondent be re-
quired to offer Walter Cockrell full reinstatement with
backpay . In accordance with customary requirements, re-
instatement shall be to his former job or, if that job no
longer exists , to a substantially equivalent position , without
prejudice to his seniority or other rights and privileges. He
shall be made whole for any loss of earnings he may have
suffered by reason of the discrimination against him by
payment to him of a sum of money equal to that which he
would have earned from the date of discharge to the date
of a valid offer of reinstatement, less net earnings during
such period, to be computed in the manner prescribed in
F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact and conclusions of
law, and the entire record herein, and pursuant to Section
10(c) of the Act, I hereby recommend the following:
ORDER 83
Respondent , Montgomery Ward & Co., Incorporated,
its officers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Granting or expediting wage increases to its employ-
ees to discourage their union activities.
(b) Promulgating a no-solicitation rule for the purpose
of discouraging union activities.
(c) Threatening its employees for violating any no-solic-
itation rule not validly promulgated.
(d) Threatening its employees against the wearing of
union insignia except when in contact with customers or
the general public.
(e) Discharging or otherwise discriminating against any
of its employees for engaging in union or other protected
concerted activity.
(f) In any other manner interfering with , restraining, or
coercing its employees in the exercise of their rights guar-
anteed by Section 7 of the National Labor Relations Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Upon request, bargain collectively and in good faith
83 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 objections thereto shall be
deemed waived for all purposes.
MONTGOMERY WARD & CO., INCORPORATED 395
with International Union of Electrical , Radio and Machine
Workers, AFL-CIO-CLC, as the exclusive representative
of all the employees in the following appropriate unit, and
embody in a signed agreement any understanding reached:
All service technicians and service clerks of the
Employer's central service department , Santa Fe
Street facility, Oklahoma City, Oklahoma, including
inside and outside whiteline technicians, television
technicians , general technicians , repair service clerks
(parts clerks), vendor-charge-back clerk , service con-
tract telephone clerks, and dispatcher, but excluding
office clerical employees , professional employees,
guards and supervisors as defined in the Act.
(b) Offer Walter Cockrell full reinstatement to his for-
mer job or, if that job no longer exists , to a substantially
equivalent job, without prejudice to seniority or other
rights and privileges, and make him whole for any loss of
pay suffered by reason of his discharge in the manner set
forth in the section of this Decision entitled "Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all pay-
roll records, social security records , timecards, personnel
records and reports, as well as all other records necessary
to analyze and compute the amount of backpay due here-
under.
(d) Post at its place of business in Oklahoma City, Okla-
homa, copies of the attached notice marked "Appendix." 64
Copies of said notice, on forms provided by the Regional
Director of Region 16, after being duly signed by an au-
thorized representative of Respondent, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing, within 20
days of this Order, what steps Respondent has taken to
comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
84 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
9