Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

Feb 19, 1976

222 N.L.R.B. 965 (N.L.R.B. 1976)

MONTGOMERY WARD & CO. INC. 965
Montgomery Ward & Co., Inc . and Retail Store Em-
ployees Union Local 1407 , as Chartered by Retail
Clerks International Association , AFL-CIO. Cases
6-CA-8032 and 6-RC-7070
February 19, 1976
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
IT IS FURTHER ORDERED that the election held on
February 28, 1975, in Case 6-RC-7070 be, and it
hereby is, set aside, and said case is hereby remanded
to the Regional Director for Region 6 for purposes of
conducting a new election.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
By CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
On October 8, 1975, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Montgomery Ward &
Co., Inc., Uniontown, Pennsylvania, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
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.
We disavow the Administrative Law Judge 's comment to the extent it
implies that Respondent has an "established antiunion policy" extending
beyond the parameters of this case The record is devoid of evidence to
support such an implication other than the statement by Feinberg,
Respondent 's attorney and labor relations manager , which we have found
herein to be unlawful
Member Jenkins does not join in this disavowal In the view of Member
Jenkins, it is plain that Labor Relations Manager Feinberg 's conduct was in
furtherance of and based upon what he himself set out as Respondent's
uniform policy to refuse to bargain in good faith with unions representing
its employees It is his exposition of this policy which constituted the viola-
tions here , which Member Jenkins' colleagues join him in finding It is this
admitted policy to which the Administrative Law Judge refers in describing
it as an "established antiunion policy" His reference and description are
accurate , and there is no indication or implication that his description re-
lates to any other matter . Thus, Member Jenkins believes any disavowal is
unwarranted
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Administrative Law Judge: A hearing
in this consolidated proceeding was held on August 19,
1975, at Uniontown, Pennsylvania. In Case 6-CA-8032 the
complaint, on which testimony was received, was issued on
May 28, 1975, against Montgomery Ward & Co., Inc.,
herein called the Respondent, or the Company. The com-
plaint rests upon a charge filed on January 20, 1975, by
Retail Store Employees Union Local 1407, as chartered by
Retail Clerks International Association, AFL-CIO, herein
called the Union. In Case 6-RC-7070 a Board-conducted
election was held on February 28, 1975; the Union lost the
election and filed objections to conduct allegedly improp-
erly influencing the outcome of the balloting. The ques-
tions to be decided here are whether the Respondent vio-
lated Section 8(a)(1) of the Act and whether it engaged in
conduct which improperly interfered with the election.
Briefs were filed by the General Counsel and the Respon-
dent.
Upon the entire record and from my observation of the
witnesses I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Montgomery Ward & Co., Inc., is a Delaware corpora-
tion engaged in the operation of a chain of retail depart-
ment stores, with its principal office in Chicago, Illinois.
This case is solely concerned with the Respondent's Union-
town, Pennsylvania, store. During the 12-month period im-
mediately preceding issuance of the complaint here. Re-
spondent had gross revenues at its Uniontown store in
excess of $500,000. During the same period Respondent
received goods valued in excess of $50,000 at this one loca-
tion directly from out-of-state sources. I find that the Re-
spondent is engaged in commerce within the meaning of
the Act.
11. THE LABOR ORGANIZATION INVOLVED
I find that Retail Store Employees Union Local 1407, as
chartered by Retail Clerks International Association,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
222 NLRB No. 159
966 DECISIONS-OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
Both the unfair labor practice aspect of this case, and the
objections stage of the related representation proceeding,
arose out of the Respondent's implementation of its estab-
lished antiunion policy when self-organizational activities
started among the employees of its one store in Union-
town. The Union filed a petition on January 20, 1975, seek-
ing an election among the approximately 114 nonsupervi-
sory employees there. On February 5 the parties signed a
consent election agreement, the balloting scheduled for
February 28. During the week of February 10 and again
during the week immediately preceding the election, Gary
Feinberg, a labor relations specialist lawyer and regional
labor relations manager for the Respondent from another
city, came to Uniontown to deliver to the employees a mes-
sage from their employer; on each occasion he spoke to all
of the employees, some said for as long as an hour, in
groups of 10 or so in a private room, with Patrick Lorenzo,
the store manager, always present. Feinberg's purpose was
to assure that the employees did not vote for union repre-
sentation; indeed, he candidly admitted that among his du-
ties "I also advise and participate in counter organizational
efforts where we have organization by Unions at different
locations. It is my job to represent the company."
Feinberg succeeded in his objective. In the election 37
employees voted in favor of the Union and 67 against. The
sole question to be decided here is whether his carefully
articulated and repeated message, voiced again a little here
and a little there throughout the store also by various su-
pervisory personnel, improperly interfered with the elec-
tion and unlawfully coerced the employees. For the least
Feinberg's talks destroyed the clean laboratory atmosphere
required for a fair election; just as certainly he interfered
with, restrained, and coerced all the employees in violation
of Section 8(a)(1) of the Act, as alleged in the complaint.
But perhaps a more important question, to be considered
by the General Counsel and the Labor Board itself, is
whether this sort of unfair labor practice can be remedied
in any way short of a direct order against the Respondent
to bargain with the Union now, followed quickly by a
court order, with its contempt enforcement power. What
Feinberg really told all these people, and they understood
him quite clearly, was that in no event-regardless of how
they voted-did the Respondent intend to give any consid-
eration to the voice of a chosen majority representative
with respect to any aspect of the employees' conditions of
employment. He told them the Company had never done
so, is not doing it now, and never will. It would be difficult
to conceive of a more pervasive and egregious unfair labor
practice making it impossible to hold a fair election.'
A number of employees testified about what Feinberg
told them; in essential matters they were consistent. But
the story here could as well be summarized simply by quot-
ing from Feinberg's recollection, for he did not contradict
the employees in any significant way. He said at the hear-
ing that the ultimate idea he wanted to implant in the
minds of the employees was that they had nothing to gain
1 N L R B v G,ssel Packing Co, Inc, 395 U S 575 (1969).
by voting a union into the store, that whatever "benefits"
they were enjoying, or might tomorrow receive, they would
have with or without a union, that all matters involving
employee benefits were decided by the Company on a
companywide basis, with unionized and nominionized
stores all being treated alike, and that therefore all that
could result from these employees voting for the Union is
that they would be parting with their money when they
could ill afford it while getting nothing in return. He even
told them that what periodic wage increases were provided
for in the very few collective-bargaining agreements to
which the Company is a party, were really no greater than
what the Company always gave, and was going to continue
to give voluntarily to its nonuniomzed employees.
Feinberg spoke very artfully; he stated facts, all of which
were true, about what had always happened in the past in
this Company-the Company never conceding anything to
a union demand except it be what it was ready to give all
its employees in any one of the stores, what conditions of
the moment were throughout its very many stores, and
what employees in certain other Pennsylvania stores had
achieved by having a union. He explained he had bar-
gained on behalf of the Company in the past and would be
the one to bargain with this Union here if the employees so
voted, and to be sure the employees got the facts straight,
he offered for their inspection, apace with the many talks
he gave, the union contracts then in effect in three of the
stores in the area. What better proof could the employees
have of Feinberg's repeated message that the Union would
get them nothing, than comparison, before their very eyes,
between the terms of these contracts and the conditions
under which they were themselves working?
The following are excerpts from Feinberg's testimony.
I would point out that we have very few Unions in
Montgomery Ward, that only approximately five per-
cent of all our employees are represented by labor
Unions and then I would point out that we have as a
company, we have one overall fringe benefit program.
"We have the exact same pension plan, the exact same
vacation plan, holidays, health insurance, long term-
disability plan in every location in the country and
that when we make a change we make it company
wide. This has always been our practice and it so hap-
pened that in those few locations where we did have a
Union they had the same benefits that all other em-
ployees have" and I said "they have the same pension-
plan, etc. that you have" ... .
Incidentally, I brought the contracts with me for
those stores and I pointed out to them that I thought it
was important for them to know what the retail clerks
have done for Montgomery Ward employees. I said,
"They may have promised you many things," but I
said, "I think it's important for you to know what this
Union has done for Montgomery Ward employees
and in fact that have no benefit that you don't already
have in the way of fringe benefits" and I said "When
we make a• change in our fringe benefits in the pack-
age, at least up to this point in our history, we have
MONTGOMERY WARD & CO. INC. 967
always done so company wide. And just the fact that
we had a Union in the location up to this point in
time, it never, it had never caused us to implement or
to put into effect a benefit that we didn't put into
effect in all our stores." I said, "I think you ought to
know this because this is what has happened in the
past" and I just said, "Chances are if things progress
the way they have in the past, we can expect this to be
the case in the future."
Feinberg told the employees "if the Union were to win
the election, it would be my responsibility to bargain on
behalf of the Company . . . I would bargain in good faith
11... we would sit down and negotiate a contract . .. .
Feinberg spoke of wages as well: " . .. I showed them
the contracts and I said, 'here in Lewistown contract, we
sat down and negotiated and the employees-there under
the contract will receive a twelve-cent increase during the
year 1973 and a ten-cent increase during the year 1974' and
I said 'in Punxsutawney and DuBois contracts, they would
receive' and I said 'I just recently negotiated those con-
tracts. They would receive a fifteen-cent increase this year
and a twelve-and-a-half cent increase next year' and I said,
'I really would intend to negotiate a contract similar to this
if the Union is selected here.' "
And then to convey the idea once again that'the Union
would be no more than a useless financial burden upon the
employees, Feinberg added:
And I said, "I think you should compare these other
contracts with the Retail Clerks with what you can
currently expect in the way of a wage increase without
having the Union" and I said, "You all know you re-
ceive an increase now once a year and it ranges any-
where from six to ten percent a year." . -
And I said, "Compare that to the -contracts that we
have with the Retail Clerks in other locations." And I
said, "You should be mindful that employees who
work in these other stores, these three stores, DuBois,
Punxsutawney and Lewistown," they are paying dues,
they pay initiation fees and they are not receiving-any
benefits that you aren't already receiving and this is
the type of wage increase that I have. negotiated in
those contracts."
Feinberg stopped short of telling-the employees in so
many words that tomorrow the Company would hold ada-
mantly to a "take it or leave it" attitude if it should have.to
sit across a bargaining table with the Union. The phrase "I
will bargain in good faith" from him was a mockery during
all these private meetings, with the employees. What he es-
sentially told them-assessing the sum total of his remarks,
and none of the employees missed the point-was'that the
Respondent had no'intention of according the Union a
representative and collective voice on behalf of the em-
ployees as the statute commands, that their conditions of
employment were always going to-be determined by the
Company unilaterally,- as they always had been, and that a
majority vote for the Union would lead to no more than a
charade at the bargaining table. Actually, Feinberg's words
even gave him away literally, if words are to be given ra-
tional meaning. "I said, 'This is what we have done in the
past' and I said, 'if the Union is elected here, I intend to
negotiate in good faith, but I think they should be guided
by past history.' "
To say "be guided by past history" is the same as saying
"the company will do tomorrow exactly as it did in the
past." And if in the past it never yielded to any union
demands, if in all ostensible collective bargaining of the
past it insisted to impasse upon unions accepting the
Company's persistently fixed determination that union-
represented and nonunion employees be treated exactly
alike, Feinberg was telling all these employees the one
thing that would never happen was "good faith" bargain-
mg,.while simultaneously giving lip service to the principles
of established law. And to make doubly sure he was well
understood, Feinberg told the employees he knew of only
two strikes that had ever been undertaken against the Re-
spondent, one abandoned after 3 weeks following complete
surrender by the striking union, and the other still in pro-
gress 2 years after its inception with no possibility of that
union ever achieving the least of its demands. Feinberg's
message to the employees was that the Respondent effec-
tively ignores unions in the conduct of its business. In a
very real sense , he was violating Section 8(a)(5) of the Act
in anticipation of the possible event.
From the testimony of the employees. Louise Kimbel.
"He told us we had nothing to gain by joining a union,
outside, of paying union dues, we would not benefit by
health or welfare insurance because they had coverage,
Montgomery Ward coverage, and it was company policy
to-go by that. But nobody else would have anything differ-
ent than that. He couldn't back down from that." "There
would be no change in benefits, because it was company
policy, they had their own benefits and there would be no
change .... Mr. Feinberg said we could be assessed, our
union dues, could be raised, we would be fined for crossing
picket lines, there would be no change in our benefits, that
we have now. Under no circumstances would there by any
changes because of company policy .. .." John Ofsamk:
"He asked us why we wanted one in the store, he couldn't
understand it, and he pointed out things to us about having
a union in the store. He told us that if we had a union in
the store, that the union really couldn't do us any- good,
because everything that,, s set down, is company policy as
far as wages and things like that, there is nothing a union
can-do for you .... he also told us that he wouldn't give us
anything else, other than what we have right now. So, that
union would not really benefit us at all. . . . He did state
that even though we were in the union, we would probably
have to,pay initiation fees, ranging from forty dollars, and
also union dues, which would range, somewhere from nine
dollars to eleven dollars a'month, and he said that they
wouldn't gain us anything as far as company, benefits are
concerned. Because company benefits are laid down by
company policy and there is nothing that.can be changed."
James Barkley: "Mr. Feinberg asked :us why .we would
want a union in the store, and he said that he didn't feel
that it would benefit the employees in any way. He told us
that we would be paying from forty to eighty dollars in
initiation fees and six to eleven dollars monthly dues, and
he also told us that he would not negotiate any contracts
other than the Company, other than what company policy
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
permits, because it is his job not to and even if we went on
strike, he wouldn't give us anything above company poli-
cy." "And he said he doesn't feel it would benefit the em-
ployees a bit " "Q. And did he tell you that the employees
of those three unionized stores, as well as the other union-
ized employees are paying dues and initiation fees? A. Yes
he did. Q. And did he tell you that they received the same
benefits that you are receiving without having to pay dues
and initiation fees? A. Yes he did " Linda Deadman "He
said, that he understood that the union was promising good
wages, big wages if they got in. He said, that this was un-
true, because he would not under any circumstances, nego-
tiate for any more than he had negotiated on any other
contract. He had with him what he said were copies of
contracts for three stores, Montgomery Ward stores, in
Pennsylvania who are unionized, and he said that, what the
union was saying was untrue because he would not negoti-
ate for more than he had negotiated on those contracts.
It matters not how Feinberg's repeated statements to the
employees be described-as advance announcement that
the Respondent would refuse to bargain sincerely with the
union of their choice, as warnings that their desire to bar-
gain collectively would be frustrated, or as assurance that
the Respondent would unilaterally grant to them whatever
benefits they could possibly achieve by selecting the Union
as their bargaining agent. I find that in every talk he gave
to the many groups of employees, during the weeks of Feb-
ruary 10 and February 28, he unlawfully coerced them in
their freedom to engage in concerted activities and thereby
violated Section 8(a)(1) of the Act in every instance. Cf.
Tube-Lok Products, Eastern Division of Portland Wire &
Iron Works, 209 NLRB 666 (1974).
The store manager and several department managers, all
admitted supervisors, spoke to a number of employees be-
fore the election, and the testimony of the witnesses essen-
tially shows they passed on the same message that Fein-
berg had brought to the store.
John Ofsanik, a commission salesman, testified that at
one of the Feinberg meetings, Patrick Lorenzo, the store
manager, said he too could not understand why the em-
ployees wanted a union , "everybody was more relaxed as it
was," "if we wanted to take a few extra minutes on our
break or a couple of extra minutes on lunch hour nobody
said anything to you, if you were late a couple of minutes
in the morning nothing was really done about it. But, if we
had a union in the store, we would be strictly on the clock,
if you come in late in the morning, you would be docked
for your time, if you were late on your break, or late on
your lunch hours you would also be docked for it." James
Goodwin, of the carpeting department, also testified Loren-
zo asked him, during February, had he "heard the rumors
going around lately," and then added "I knew that it
wouldn't help the commission men any." Lorenzo did not
testify. I find that by telling Ofsanik that conditions of
employment would be poorer for the employees if they
chose the union, and Goodwin that chosing a union would
gain the employees nothing, Lorenzo unlawfully coerced
them and committed unfair labor practices in violation of
Section 8(a)(1) of the statue.
Cherry Lucas, of the men's department, testified that on
about February 1 her supervisor, George Simon, called her
into an office and asked her "had I heard anything about
the union . . from who and what did you hear," "had
anybody approached me with, or for me to sign a card
about the union . . have you decided how you're going to
vote . ..." When Lucas said she was still undecided, Si-
mon said: "I hope you would vote no." Simon denied ask-
ing Lucas any of these questions or trying to influence her
in any way. His story is that he only called her into the
office, about 10 days before the election, to ask would she
be available to work on election day, and then arranged for
her to come in at that time in order to assure that she
would cast a ballot, regardless of which way. I credit Lu-
cas, and I find that by asking her who had spoken to her
about the Union and whether she had herself signed a
union card, while coupling the conversation with a request
that she vote against the Union, Simon unlawfully interro-
gated her about her union activities and thereby violated
Section 8(a)(I)
Another supervisor is Linda Cable, in the cosmetics and
candy department. Linda Deadman, an employee, testified
Cable asked her one day "if anyone had said anything to
me about a union," and that while she had heard it was
"part-time people who were interested in getting a union
started," she, Cable, "could not understand why part-time
people would want union dues deducted from their pay."
Cable then added, still according to Deadman, the Union
has never done anything for the supervisor. Another em-
ployee, Robin Vilella (Nee Rockwell), testified Cable one
day in February said to her "you didn't sign a union card
did you," and she answered no. Cable's version of her talk
with Deadman is that, having heard from other employees
"the union is coming in to the store," she did no more than
"walked over to her and I asked her if she had heard any-
thing about the Union and she did not answer me and
that's the extent of the conversation. She kept a closed
mouth so I just left." Cable denied having had any conver-
sation at all with Deadman about the Union.
I credit Deadman and Vilella against Cable's denials.
The illegal interrogation of Vilella is not really contra-
dicted. As to Deadman's story, I cannot doubt Cable did
stress the particular mistake, in her opinion , for part-time
employees in getting involved with the Retail Clerks. It is
logical to believe the lower supervisors would parrot the
general theme broadcast by Feinberg. One of the signifi-
cant matters he explained at his meetings was that union
contracts do not guarantee what amount of work hours
would be assigned to part-timers Quoting from his own
testimony again-
. . . part-timers, part-time employees are not guaran-
teed any hours in our contracts [with unions] and it's
quite conceivable that even after the union comes in
that part-timers will have their hours reduced because
that's a practice in our union stores and it's a practice
in our nonunion storgs. I don't know why the practice
would change if we negotiated a contract, like the
Union contracts that we do have.
Deadman attributed to Supervisor Cable nothing different
than what came more broadly from Feinberg. I find that
by asking Deadman had anyone spoken to her about the
Union, and Vilella whether she had signed a union card,
MONTGOMERY WARD & CO. INC. 969
Cable illegally interrogated them and thereby violated Sec-
tion 8(a)(1).
There is more serious conflict in testimony between Ca-
ble and employee Mary Conoway. In this instance I do not
credit the employee, because her demeanor as a witness
was very poor, because she changed her story as she went
along, because while making much of the assertion she had
recorded the significant events in her diary notes, examina-
tion of the notes failed to support her assertion, and be-
cause the critical conversation of which she spoke was
started by her and not by the supervisor. At one point
Conoway said that on January 10 Cable asked had she
signed for the Union; later the witness quoted Cable as
telling her on February 10 she, the supervisor, had just
learned about the Union. Cable could not in January have
interrogated her about the Union and still say, in Febru-
ary, she had no previous knowledge. Conoway's January
diary is silent about any union talk with the supervisor.
Conoway also suggested that Cable argued that as a part-
timer she had no business in the Union. Her changing story
here then became that one day she asked for more hours
and did not get them. Shortly thereafter she went to Cable
and volunteered the complaint that she was being "bug-
ged" against her will to join in the union movement. The
way Conoway finally phrased this conversation on cross-
examination is on its face incredible. "I just told her, I said,
`I wish they would let me alone . I didn't know anything
about a Union' and she said, `Did you sign?' I said, 'What-
ever I do outside the store is my personal business.' " Cable
admitted telling Conoway'at some point that the Union
could not assure her more hours of work, and she candidly
explained this followed the employee's request for more
hours and her complaint about being pressured into the
Union. I make no unfair labor practice findings based
upon Conoway's testimony.
Another manager-supervisor is Michael Muth, over mer-
chandising; he - virtually admitted repeating part of
Feinberg' s message to a number of employees. Vilella said
Muth talked to her a number of times about the Union.
. . if this store had a union that the breaks would be
watched, and that there would be a completely different
atmosphere, ... he asked me what I thought about the
union." And then, shortly before the election : ". . . he
asked me what chances the store had with a union." James
Barkley quoted Muth as telling him ". . . he had heard
some talk about a union coming into the store . . . I would
like your opinion about it." When Barkley answered he
was undecided, Muth continued with ". . . he felt that we
shouldn't have a union because it would not benefit the
employees in any way. He said the only thing it would be a
burden to the employees."
As to Vilella, Muth testified he first talked to her about
the Union only to ask had anyone been pressuring her, and
to advise her "not to sign anything against her will," but to
be sure to vote no matter which way. And then, again like
Feinberg, Muth added he spoke to Vilella again shortly
before the election: ". . . I did approach her again to tell
her what I felt the management opinion was or their side of
this issue and I didn't feel that there would be much advan-
tage to these employees, especially part-time employees, to
become associated with a bargaining unit because I didn't
feel that they would obtain additional benefits that they
did not already have to pay out some of their weekly wage
for dues." Muth denied he ever interrogated anyone in any
manner.
Concerning Barkley, Muth denied asking the man how
he would vote, but did say he spoke to Barkley "about the
benefit or lack of benefit that a union could provide to our
employees. I expressed my opinion ...." Muth then add-
ed he said to a number of employees ". . . in my opinion I
did not feel that these employees in our store claimed bene-
fits, gained to benefit anything significant, whether wages
or benefits, from having a collective bargaining unit in the
store to represent them." To how many employees had he
said this? ":.. I would say a number of them. I don't
recall how many exactly .... Perhaps twenty." Clearly
Muth was passing on Feinberg's message. I credit Vilella
and Barkley and I find that by interrogating Vilella and
Barkley as to their opinion about the Union, and by telling
Vilella how past privileges would be lost if the employees
chose to be represented by the Union, Supervisor Muth
violated Section 8(a)(1) of the Act.
Finally, a supervisor named Kathleen Trainor agreed
with another employee witness, Sherry Mongell, that she
one day asked the girl whether the sister of John Ofsanik
was involved "in this union bit," and was it possible that
the sister was "influencing" Mongell towards the Union.
Trainor said she knew Ofsanik was active in the union
campaign. I do not believe Trainor's statement, contrary to
that of Mongell, that the inquiry came after the union elec-
tion. No need to speculate on why Trainor questioned
Mongell, for the Board has held that interrogation of em-
ployees by management concerning their union activities
carries an inherently intimidating effect. I find that Trainor
violated Section 8(a)(1) of the Act by interrogating Mon-
gell.
Objections: Case 6-RC-7070
The hearing on the Union's objections to the election
lists three specific charges; the first two are based on
Feinberg's activities set out above. In view of the unfair
labor practices committed by Feinberg as agent of the
Company, as detailed above, I conclude that the first two
objections have merit and that therefore the results of the
election must be set aside. I recommend that a second elec-
tion be conducted when in his judgment the Regional Di-
rector deems proper.
The third objection alleges that management representa-
tives stationed themselves near the entrance to the polling
place where they could "observe" the employees going to
vote. The only evidence on this point-offered" by the
Union-is testimony by Barkley, the employee, who said
that during the voting a number of supervisors gathered in
an aisle of the store where employees, if they chose that
aisle, passed near them on the way to the voting room. The
spot where Barkley placed these men was outside a second
room, the catalog room, which separates the voting room
from the selling areas. He named six or seven supervisors-
including the store manager and Feinberg himself-as
those who came and went during the afternoon, "congest-
ed" the aisle for 10 minutes or so at a time, and just stood
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
around. Conceding that the supervisors were outside the
area which the Board agent had announced should be free
of either Company or union agents, Barkley put them
about 50 feet from the actual voting place. No one
claimed the managers could see what was going on at the
voting booths.
Whether or not the supervisors improperly "observed"
the employees coming and going through that aisle, is an
academic question here , in view of the clearly unlawful
interference with the election committed by Company
agents for weeks before that day. But if it were necessary to
pass upon the merits of this one objection , I would find it
without merit.
Barkley vacillated ; the sum total of his testimony is that
the supervisors did not really form a phalanx of intimidat-
ing watchers , but rather "they were all over the store." At
different times, they would come and go. Except for Loren-
zo and Feinberg, these were all department managers, who
always "come and go . . . all over the store." It was an
unusual day, and Feinberg , who did have a special interest,
had to stand somewhere part of the time at least . Barkley
even said the employees did not have to pass this way,
indeed that they used several other aisles also to go into the
voting booth . Something more substantial than this is re-
quired as basis for setting elections aside.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
1. Cease and desist from:
(a) Telling employees that in no event would union rep-
resentation result in improvement in the conditions of em-
ployment , telling employees that if they chose to be repre-
sented by a union their conditions of employment would
be more onerous and existing privileges curtailed , mterro-
gating employees concerning their union activities and
sympathies , or inquiring of employees concerning the iden-
tity of prounion employees.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization , to form, join, or assist Retail Store Employ-
ees' Union Local 1407, as chartered by Retail Clerks Inter-
national Association , AFL-CIO, or any other labor organi-
zation, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activ-
ities for the purpose of collective bargaining or other mutu-
al aid or protection , or to refrain from any and all such
activities.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Post at its premises in Uniontown , Pennsylvania,
copies of the notice attached hereto and marked "Appen-
dix." 3 Copies of said notice , on forms provided by the
Regional Director for Region 6, after being duly signed by
its representatives , shall be posted by the Respondent im-
mediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter , in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by it to insure
that said notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order , what steps
the Respondent has taken to comply herewith.
CONCLUSIONS OF LAW
1. By telling employees that in no event would union
representation result in improvements in their conditions
of employment, by telling employees that if they chose to
be represented by a union their conditions of employment
would be more onerous and existing privileges curtailed, by
interrogating employees concerning their union activities
and sympathies, and by inquiring of employees concerning
the identity of prounion employees, the Respondent has
engaged in unfair labor practices in violation of Section
8(a)(1) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and the'entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER2
The Respondent, Montgomery Ward & Co., Inc.,
Uniontown, Pennsylvania, its officers, agents, successors,
and assigns, shall:
2 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
3 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after a
trial, that we violated the federal law by committing illegal
acts of threat and coercion in interfering with self-organi-
zation rights:
WE WILL NOT tell our employees that in no event will
union representation result in improvements in their
conditions of employment.
MONTGOMERY WARD & CO . INC. 971
WE WILL NOT tell our employees that if they chose to
be represented by a union their conditions of employ-
ment will be more onerous and that existing privileges
will be curtailed.
WE WILL NOT interrogate our employees concerning
their union activities or their union sympathies.
WE WILL NOT inquire of employees concerning the
identity of prounion employees.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization, to join or assist Retail
Store Employees Union Local 1407, as chartered by
Retail Clerks International Association, AFL-CIO, or
any other labor organization , and to engage in other
concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection.
MONTGOMERY WARD & CO., INC.