Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

May 25, 1976

224 N.L.R.B. 104 (N.L.R.B. 1976)

104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Montgomery Ward & Co, Incorporated and Chauf- 2 Substitute the attached notice for that of the
feurs, Teamsters , Warehousemen and Helpers Lo- Administrative Law Judge
cal Union No 144, affiliated with International
Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America Case 25-CA-7077
May 25, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On January 15, 1976, Administrative Law Judge
Walter H Maloney, Jr, issued the attached Decision
in this proceeding Thereafter, Respondent filed ex-
ceptions and a supporting brief, and General Coun-
sel filed a brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order 2 as modified herein
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 hereby orders that the Respondent, Mont-
gomery Ward & Co, Incorporated, Terre Haute, In-
diana, its officers, agents, successors, and assigns,
shall take the action set forth in said recommended
Order, as so modified
1 Substitute the following for paragraph 1(c)
"(c) Granting benefits to employees to dissuade
them from engaging in union activities "
i We do not adopt the Administrative Law Judge s finding that Respon
dent violated Sec 8 (a)(1) by soliciting and adjusting grievances The record
does not support the Administrative Law Judge's finding that Supervisor
Shroeder called Supp into his office and asked him what his complaint was
Instead, it is clear that the conversation was initiated by Supp who in
formed Shroeder that he could not support himself on his earnings We do
however, agree with the Administrative Law Judge that the subsequent
granting of benefits to Supp, a union adherent, was in violation of Sec
8(a)(1) Accordingly, we modify Conclusion of Law 4 to reflect the fore
going
2 Our adoption of the Administrative Law Judge s recommended Order
which includes broad injunctive language is based on the violations found
in this case, and we do not rely on any other proceedings involving the
Respondent Springfield Dodge Inc 218 NLRB 1429 fn 2 (1975)
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which we were found to have com-
mitted certain unfair labor practices, we have been
ordered to post this notice and abide by it
WE WILL NOT interrogate employees concern-
ing their union activities or the union activities
of other employees
WE WILL NOT engage in surveillance of the
union activities of our employees and WE WILL
NOT request employees to engage in the surveil-
lance of union activities of other employees
WE WILL NOT grant benefits in order to dis-
suade employees from engaging in union activi-
ties
WE WILL NOT threaten employees with loss of
benefits in order to discourage them from en-
gaging in union activities
WE WILL NOT discharge or otherwise discrimi-
nate against employees in their hire or tenure in
order to discourage their support of and activi-
ties on behalf of Chauffeurs, Teamsters, Ware-
housemen, and Helpers Local Union No 144,
affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen, and
Helpers of America, or any labor organization
WE WILL NOT by any means or in any manner
interfere with, restrain, or coerce employees in
the exercise of rights guaranteed to them by Sec-
tion 7 of the National Labor Relations Act
These rights include the right to form, join, or
assist labor organizations, to bargain collectively
through representatives of their own choosing,
and to engage in other concerted activities for
their mutual aid and protection
WE WILL offer full and immediate reinstate-
ment to Albert W Supp to his former position
or, if such position no longer exists, to a substan-
tially equivalent position, and WE WILL make him
whole for any loss of pay which he has suffered
by reason of the discrimination practiced
against him, with interest thereon computed at 6
percent per annum
MONTGOMERY WARD & CO, INCORPORATED
224 NLRB No 12
MONTGOMERY WARD & CO 105
DECISION
F INDINGS OF FACT
STATEMENT OF THE CASE
WALTER H MALONEY, JR, Administrative Law Judge
This case came on for hearing before me at Terre Haute,
Indiana, upon a complaint,' amended at the hearing, is-
sued by the Regional Director of Region 25, which alleges
that Respondent Montgomery Ward & Co, Incorporated,2
violated Section 8(a)(1) and (3) of the Act, as amended
Specifically, the amended complaint alleges that Respon-
dent unlawfully interrogated employees concerning their
union activities and the union activities of other employ-
ees, requested employees to spy on the union activities of
other employees, solicited and adjusted grievances in order
to dissuade employees from supporting the Union, threat-
ened employees with loss of benefits and adverse changes
in working conditions if the Union were successful, and
discharged Albert W Supp because he supported the
Union's organizing drive Respondent denies many of the
independent violations of Section 8(a)(1) which were al-
leged and asserts that it discharged Supp on May 7, 1975,
because he violated a no-solicitation rule Upon these con-
tentions, the issues herein were joined 3
I THE UNFAIR LABOR PRACTICES ALLEGED
A Background and 8(a)(1) Conduct
Respondent operates a large department store near the
center of the city of Terre Haute where it employs nearly
200 persons On the same premises but in a separate build-
ing it operates an automotive service center where it em-
ploys about 20 salesmen, repairmen, tire changers, and gas-
oline station attendants The Union began an organizing
drive on the entire establishment in March 1975 On
March 31, it filed a representation petition seeking an elec-
tion in a broad unit composed of all warehousemen, sales
personnel, automotive service center employees, and cafe-
teria workers, with the usual exclusions (Case 25-RC-
5946) The case was set for hearing on April 16 and was
rescheduled for May 2 The hearing did not take place The
i The principal formal papers docketed herein are as follows Charge
herein filed against Respondent by Chauffeurs, Teamsters, Warehousemen
and Helpers Local Union No 144, affiliated with International Brother
hood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America
(herein called Union), on May 12 1975 complaint issued on June 26, 1975
Respondent's answer filed on July 11, 1975, hearing held at Terre Haute
Indiana, on August 25 and 26, 1975, briefs filed by the General Counsel and
Respondent with me on September 29, 1975
2 Respondent admits, and I find, that it is an Illinois corporation which
maintains a multistate chain of retail department stores, including a store
and automotive service center located at Terre Haute, Indiana During the
preceding 12 months, a representative period Respondent sold and distrib-
uted products valued in excess of $500,000, and purchased at its Terre
Haute Indiana store directly from points and places located outside the
State of Indiana goods and merchandise valued in excess of $50,000 Ac
cordingly it is an employer engaged in commerce within the meaning of
Sec 2(2), (6), and (7) of the Act The Union is a labor organization within
the meaning of Sec 2(5) of the Act
3 Certain errors in the transcript have been noted and corrected
petition in Case 25-RC-5946 was withdrawn on May 6
because another petition had been filed by the Union on
May 5, seeking an election in a unit limited to automotive
service center employees (Case 25-RC-5966) An election
in the smaller unit was directed on May 28 and was held on
July 30 The Union won the election by a vote of 13 to 5
and was certified on August 7, 1975
Among the Union efforts directed toward organizing the
store were two meetings conducted at the Teamsters hall or
office which took place on March 24 and April 2 Between
these two meetings, Union Assistant Business Agents Har-
ry V Rogers and Todd Jorritsma personally carried a let-
ter, dated March 28 and signed by Union President George
L Hanks, to Store Manager Jon C Maston In that letter,
the Union claimed majority status and demanded recogni-
tion Rogers and Jorritsma left the letter with Maston's
secretary Maston did not reply to the letter directly, but on
April 7 issued a letter to all of Montgomery Ward's Terre
Haute employees in which he acknowledged receipt of
Hanks' letter, informed employees that Respondent would
not grant the requested recognition, and indicated his feel-
ing that the best way to determine a question of representa-
tion was to have an election He also noted that a represen-
tation petition had been filed His letter contained the
comment
In general, I know the union is not going to be able to
help our employees To illustrate this point, I will be
speaking to you as time goes along
It is my sincere hope you will feel free to ask me any
and all questions you may have My intent is and will
be to provide total and complete information in this
matter
During the period of time when it was engaged in orga-
nizing the main portion of the Montgomery Ward store,
the Union obtained designation cards from various em-
ployee supporters However, in the automotive service cen-
ter, which became the focal point of organizational interest
after the Union withdrew its first petition, Albert W Supp,
a partsman, was the principal organizer During the period
running from mid-March until May 7, when he was termi-
nated, Supp obtained about nine signed designation cards
from service center employees Among his other activities
Supp attended the two union meetings held on March 24
and April 2 He attended the first meeting with fellow em-
ployee George Hamm Just before the second meeting, Ser-
vice Center Manager Joseph Schroeder asked Supp if he
was going to the "big meeting," referring to a union meet-
ing scheduled to take place that evening Supp replied that
he did not know but that he was thinking about attending
Schroeder also asked Supp if he had attended the first
meeting on March 24 Supp replied that he and Hamm had
attended that meeting Schroeder proceeded to ask Supp
what he thought about the meeting Supp gave him an eva-
sive and generally negative response Schroeder then asked
him to vote against the Union if the question came to a
vote He also told Supp that he would like it if he and
Hamm went to the April 2 meeting and reported back to
him what was going on 4 On the following day, Schroeder
Schroeder admits making this request to Supp
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
approached Supp in the partsroom area and asked him
how the meeting went He also asked him if Hamm had
attended, to which question Supp replied that he had not
Supp reported to Schroeder generally what had transpired
at the April 2 meeting
At or about the same time, Schroeder also inquired of
Hamm concerning the organizing campaign 5 On the day
following the March 24 meeting, Schroeder approached
Hamm and asked him what happened at the meeting The
two proceeded to discuss the various facets of the organiz-
ing drive About a week or so later, Hamm was in the
office of Service Manager Sam Potts on a business errand
At this time, Potts asked Hamm how he felt about the
Union and told Hamm that if the Union came in, employ-
ees would probably lose a lot of benefits, including their
breaktime Sometime in March, Potts had also told Supp
that, if the Union came in, breaktime and lunchtime would
be limited and the taking of such breaks would be closely
regimented At that time, the Company followed a flexible
policy in regard to the taking of breaks
On or about April 7, Schroeder spoke at some length
with Supp concerning Supp's dissatisfaction with his em-
ployment He asked Supp what his problem was, and Supp
replied that his main problem was that he was only bring-
ing home $78 per week a'id was unable to live on that
salary They discussed the possibility of augmenting Supp's
wages with an incentive program, in accordance with
which Supp, as a partsman, would receive a stated bonus
for each of several enumerated items which he sold Supp
agreed to this arrangement, so Schroeder obtained permis-
sion from Maston to put it into effect On April 14, a tem-
porary incentive for Supp, renewable every 30 days until
canceled, was put into effect 6
B The Discharge of Albert Supp
When Maston learned that an organizing drive was in
progress, he directed his secretary to Xerox a copy of a rule
respecting solicitation which could be found in the
Company's personnel manual and to post a copy on bulle-
tin boards in the store and in the automotive service center
There is no indication that, until this time, any effort was
made to bring the existence of this rule to the attention of
any employee or to enforce it in any way In pertinent part,
the rule provides
Employees may not distribute union literature or soli-
cit membership in unions, or fraternal, religious, social
or political organizations on Company time, or while
employees to whom literature is being distributed, or
whose membership is being solicited, are on Company
time Company time is that time which the employee
is scheduled to be on duty and for which the employee
is being paid, excluding rest periods, lunch periods,
and time before and after the employee's working day
5 Schroeder denies questioning Hamm I credit Schroeder
6 Examples of the incentive payments for Supp were pair of shocks regu-
lar price-25 cents, pair of shocks sale price-15 cents wheel align-
ment-40 cents complete tune up regular price-$] tire sale over
$50-$1 25 tire sale over $150-$3 50
Solicitation is permitted on Company property so long
as the employees, both those soliciting and those being
solicited are on their own time and the solicitation is
conducted in a quiet and orderly manner and does not
interfere with the operations of the Company's busi-
ness Meetings or speeches are not to be permitted,
solicitation which results in disturbing or interfering
with the work or function of any employees or depart-
ment is forbidden, solicitation which is detrimental to
maintaining the premises in a clean and attractive
condition is forbidden
*
Solicitations for charity drives and fund raising cam-
paigns are to follow the guidelines for solicitations as
outlined above The Company generally supports one
all-out community charity drive Prior approval is re-
quired for any additional drives held on Company
property Such approval is to be made by the Retail or
Catalog Store Manager, Catalog House Personnel
Manager, Regional Personnel Director or Corporate
Personnel Director
There is considerable dispute as to when Maston's secre-
tary copied and posted this notice on employee bulletin
boards Maston testified that he directed the posting of the
notice respecting no solicitation after learning that a sales-
man, John Ellington, was distributing cards in the main
part of the store According to Maston's own testimony,
Schroeder reported learning of Ellington's involvement
and of the existence of union cards in the store and asked
Maston to put an end to union solicitation since he felt it
was a disruptive factor among employees Maston called
Ellington in to the office to warn him not to distribute
cards When Ellington arrived at the office, he gave Mas-
ton a week's notice that he was quitting Maston said,
"Let's make it today," and discharged Ellington on the
spot Thereafter, a notice containing the above-quoted rule
was allegedly posted I credit testimony to the effect that it
was posted sometime in the spring of 1975 I also credit the
testimony of Hamm and Supp that they did not know of
the existence of such rule or see the posting of the notice
until after Supp was discharged
Supp continued soliciting and obtaining signatures on
designation cards at the service center throughout April
and elsewhere in early May One of the persons Supp
talked to was a gasoline service station attendant named
Walter Sims Sometime in March, Sims had signed a union
designation card at Supp's request On the day Supp was
discharged, he approached Sims, who was standing on the
sales floor of the service center during the early morning
hours Sims was not on break at the time but was not occu-
pied with any particular task He was standing about wait-
ing for potential customers to drive into the service station
for gasoline Supp asked Sims to obtain signed union cards
from a couple of gas station attendants so that he would
have a majority of the service center signed up Sims de-
clined ' and reported the request by Supp to Schroeder,
Sims testified that when Supp approached him he not only declined the
request to speak to other employees on behalf of the Union but lectured
Supp about not engaging in union activities on company time This portion
MONTGOMERY WARD & CO 107
who immediately relayed the information to Operating
Manager Robert Blanton Blanton in turn told Maston,
who called Sims into his office and requested Sims to write
out in longhand the substance of his conversation with
Supp Sims did so
Supp was then summoned to Blanton's office by Schroe-
der On the way to Blanton's office from the service center,
Supp asked Schroeder what the requested interview was all
about and Schroeder replied that he thought it had to do
with the Union While they were waiting in Blanton's of-
fice, Schroeder asked Supp what problems he was encoun-
tering in the shop Supp replied that there was dangerous
equipment, including three tire changers on a hoist, and
told Schroeder that if the defects in this equipment were
not corrected, someone would get killed
Finally, Supp was called into Maston's office in the com-
pany of Blanton Maston greeted him with the phrase
"You know your job is in jeopardy " Supp made no reply
Maston went on to inquire of Supp as to why he was so
open about the Union in light of company policy, telling
Supp that he had placed his job in jeopardy and could be
fired for being so open about the Union Supp replied that
he could not make ends meet on what he was earning at
Montgomery Ward Supp also discussed with Maston a
grievance relating to a defective tire-changing machine,
which machine Supp felt was a danger to the life or limb of
employees assigned to use it In the discussion which en-
sued, Maston reiterated the statement he had made in his
April 7 letter, namely that he felt that the Company could
do more for the employees than the Union could Interest-
ingly enough, during no conversation with Supp on the
morning or early afternoon of May 7 did Maston or any
one else in supervision mention to Supp the name of Sims
as the person who had complained of on-the-job solicita-
tion by Supp, nor was mention made of the conversation
that morning between Sims and Supp as the incident which
triggered the interview
Maston told Supp to wait outside for a few minutes, so
Supp left his office, during which period Maston pondered
Supp's fate When Supp returned, Maston told Supp that
he had put him (Marton) in a tight position because he had
been so open about his union activities, so, in light of that
fact, he would have to effectuate company policy and dis-
charge him He told Blanton to accompany Supp to the
service center Supp went to the service center, picked up
his belongings, got his final check, and left
II ANALYSIS AND CONCLUSIONS
A Independent Violations of Section 8(a)(1)
I conclude that the following statements made by
Respondent's supervisors, some of which are essentially
admitted by Respondent, constitute a violation of Section
8(a)(1) of the Act
1 Schroeder's questions to Supp on or about April 2 as
of the testimony of an employee who was recently put in line for promotion
is argumentative and suspect and is contradicted by Supp I discredit Sims
on this point
to whether he had attended the March 24 union meeting,
what he thought of the March 24 meeting, and whether he
was going to the "big meeting" that evening
2 Schroeder's request to Supp that he report back to
him what occurred at the April 2 union meeting
3 Schroeder's question to Supp the following day in-
quiring into what transpired at the April 2 union meeting,
and his question as to whether employee Hamm had at-
tended that meeting
4 Potts' statement in late March or early April to
Hamm that if the Union came in, employees would lose
benefits, including breaktime, and his interrogation of
Hamm as to how Hamm felt about the Union
5 Potts' statement in March to Supp that, if the Union
came in, the Company would stop following its flexible
policy regarding lunch and breaktimes, and would strictly
limit and regiment employees in taking these breaks
6 The Respondent's effort to solicit and adjust Supp's
grievance concerning insufficient earnings On the same
day that Maston distributed a letter to employees announc-
ing Respondent's refusal to recognize the Union and its
opposition to the unionization of the store, Respondent,
acting through Schroeder, called known union activist
Supp into his office in an obvious attempt to dissuade him
from promoting the Union cause any further Schroeder
asked Supp what his basic complaint was and received a
clear answer, whereupon he undertook to provide some
measure of improvement in Supp's earnings Schroeder
sought and obtained from the store manager permission to
institute an incentive program based on sales and made
applicable only to Supp, which would have the effect of
slightly augmenting Supp's basic earnings The program
was put into effect in mid-April when the first representa-
tion petition filed by the Union was still pending The in-
centive program was not only a promise of benefit, it was
a grant of benefit to an in-house union organizer, during
the pendency of a petition, designed to alleviate a griev-
ance which prompted his union activities in the first place
The fact that this effort on Respondent's part was not suc-
cessful, as discussed infra, in putting an end to Supp's
union enthusiasm in no way detracts from the illegality of
the act NLRB v Exchange Parts Co, 375 U S 504
(1964)
B The Discharge of Albert W Supp
By all accounts , Supp satisfactorily performed his as-
signed duties during the year in which he was employed at
the automotive service center He started to work as a tire
changer and was later assigned to be a partsman During
this period of time , he regularly received good marks from
his supervisors , with the sole possible exception of having
an untidy uniform , hardly a matter of major concern for
persons assigned to grimy work like tire changing During
the year of his employment , Supp received raises from his
hiring-in rate of $2 25 an hour to $2 75 an hour , the wage
he received when he was fired Respondent's effort to soli-
cit and adjust a grievance relating to inadequate compen-
sation, noted above, while illegal in its concept and execu-
tion , demonstrates on its behalf not only a desire to chill an
organizing drive but at the same time a recognition of
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Supp's value as an employee However, when the carrot
did not work, the stick was applied
Supp was the leading union organizer in the automotive
service center A few days before Supp's discharge, when
the Union withdrew its petition for a storewide unit and
filed a new petition limited to the automotive service cen-
ter, this area became the focal point of the struggle and a
fortiori Supp became the leading union protagonist To as-
sist it in eliminating a protagonist who could not be dealt
with effectively in other ways, Respondent fell back on a
rule contained in its personnel manual forbidding employ-
ees to solicit for union or other purposes on working time,
with certain noted exceptions
The General Counsel does not contend that the rule or
rules, as set forth above, are per se illegal Rather, he devot-
ed much argument and considerable evidence to the con-
tention that the rule was discriminatorily promulgated and
enforced Much of Respondent's testimony and argument
were designed to counter this contention In looking at the
facts and circumstances surrounding Respondent's reliance
upon this rule, the first question which must be addressed
is whether the rule was actually promulgated at all in any
meaningful sense so that employees could fairly be charged
with knowing about it and abiding by it For a number of
years, the only copy of the rule which existed at the Terre
Haute store was one which could be found only in the
recesses of a personnel manual kept in the store manager's
office During most of Supp's tenure as an employee, the
existence of the rule was a well-kept secret It was not post-
ed, it was not found in any employee handbook, and it
was not orally brought to his attention or that of any other
employee who testified at the hearing Maston admits one
element of discriminatory promulgation of a no-solicita-
tion rule, namely that it was dusted off and brought to light
at Schroeder's request, after Maston discharged union ac-
tivist Ellington, and in a direct cause-and-effect relation-
ship to a drive which was then gaining momentum 8 While
Maston responded to the Union's demand for recognition
by distributing a letter to all employees on the subject of
unionization, at no time did he make any other effort or
use any other means besides a routine notice posting on the
bulletin board to bring the existence of the newly promul-
gated rule to the attention of anyone It is no surprise that
Supp, Hamm, and possibly many others did not see it
During the period of nonapplication and nondisclosure
of this rule, a loose and informal practice or rule of the
shop had grown up which was totally contrary to the provi-
sions of the rule and which in fact endured after copies of
the rule were Xeroxed and posted Supervisors and nonsu-
pervisory employees routinely solicited employees on the
job for a whole host of purposes, ranging from United
Fund to the sale of United States Series E bonds to the
West Vigo school carnival Respondent admits that solici-
tations of employees for the United Fund and for US
Savings bonds were made under company sponsorship
Other examples of solicitation on company time are evi-
dent from the record An employee collected money on
worktime for flowers for the mother of James Smith, a
8 See State Chemical Company 166 NLRB 455 (1967) Hosiery Corpora
Lion of America, 175 NLRB 180 (1969)
store employee, who was hospitalized Another solicited
money when salesman James Rusk went to the hospital
with a heart attack Schroeder sold peanuts to employees
on worktime for the benefit of his daughter's Girl Scout
troop After the posting of the notice, solicitations were
undertaken by a supervisor and two employees for going-
away presents for six employees who were retiring in May
1975 Potts sold raffle tickets for the benefit of the West
Vigo carnival sponsored by a school which one of his chil-
dren attended I do not regard these incidents as isolated
but as part of a practice or pattern of behavior which was
often made evident to employees such as Supp, and which
condoned on-the-job solicitations, both for in-house chari-
ties and for the benefit of organizations and efforts which
had nothing to do with Montgomery Ward & Co As the
rule in question was promulgated for the admitted purpose
of limiting union organizational activity by an employer
who gave repeated evidence of union animus by the com-
mission of collateral unfair labor practices, and as the rule
was applied disparately to interfere only with union organi-
zational activities, I conclude that the Respondent may not
rely on it as a defense to discharging Supp
There is some testimony in the record that Supp was
aware of company policy and that the discharge was taken
to effectuate company policy, without specific reference to
which policy that might be The Company had a policy of
resisting union organization Supp was aware of such a
policy from Maston's April 7 letter and from the interroga-
tions, grants of benefit, and requested surveillance of union
meetings which he had experienced in the 2 months prior
to his discharge 9 I construe certain remarks attributed to
Supp regarding an awareness of the Respondent's "policy"
as meaning he was aware that the Respondent disliked the
organization of its stores, not that he was aware of the
existence of any no-solicitation rule, valid or otherwise
The Union's instruction to Supp not to solicit on company
time was cautionary advice of general application and was
by no means an instruction that a valid no-solicitation rule
was there and then in full force and effect at Respondent's
Terre Haute store Indeed, at the beginning of the organi-
zational drive when Supp commenced his union activities,
the rule in question had not as yet been promulgated
Any reliance by Respondent upon the rule as a basis for
discharging Supp is not only legally unfounded but is also
pretextual It is clear from the context of the discharge that
Respondent was not moving to enforce or vindicate its rule
when it terminated Supp Rather, it was taking steps to
9 Indeed this case is not the first instance in which Respondent s policy of
resisting organizational campaigns has extended to the commission of un-
fair labor practices In the past 10 years the Board has found that this
Respondent has committed unfair labor practices and has issued cease-and-
desist orders against it in some 13 reported cases Montgomery Ward & Co
Inc 160 NLRB 1729 enfd in part 385 F 2d 760 (C A 8 1967) Blooming-
ton Minn 8(a)(1) (3) and (5) 172 NLRB 294 enfd 399 F 2d 409 (C A 7
1968) Chicago Ill 8(a)(l) and (5) 165 NLRB 652 (1967) Pasco Kennew-
ick and Richland Wash 8(a)(1) and (5), 166 NLRB 764 (1967) Pittsburg
Calif 8(a)(1) and (5) 179 NLRB 686 (1969) Yakima Wash 8(a)(1) (3)
and (4) 187 NLRB 956 (1971) Longview Wash 8(a)(1) 186 NLRB 1022
(1970) Canton Ohio 8(a)(1) and (3) 189 NLRB 80 (1971) Poplar Bluff
Mo 8(a)(1) 197 NLRB 519 (1972) Mansfield Ohio 8(a)(1) and (3) 195
NLRB 725 (1972) Menands N Y 8(a)(1) and (3) 198 NLRB 52 (1972)
Cheyenne Wyo 8(a)(1) and (3) 202 NLRB 978 (1973) Daly City Calif
8(a)(I) and (3) 210 NLRB 717 (1974) Marshalltown Iowa 8(a)(1) and (5)
MONTGOMERY WARD & CO 109
eliminate the prime organizer in a portion of its store which
had just become the subject of the newly filed representa-
tion petition Supp's statement to Sims, requesting him to
get other gas station employees to sign, was a trivial remark
made in passing to an employee who was standing idle at
the time it was made Any interruption of the work of
either Sims or Supp by this statement was miniscule When
Supp was brought to Maston's office for his terminal inter-
views, no mention whatsoever was made to him of a con-
versation with Sims or of Sims' report, so no response or
explanation by Supp as to his side of Sims' story was possi-
ble before the rule was assertedly invoked to bring about
Supp's discharge Maston's statements to Supp during
these conversations indicated that Supp was an embarass-
ment to him, possibly in the eyes of higher management,
because Supp had been so open about promoting the union
cause Indeed, the even-handed enforcement of a no-solici-
tation rule leaves ample room for an employee to be open
and aboveboard about seeking union memberships on
company property, so long as he does so at prescribed
times and places It was Supp's openness, taken together
with the fact that Respondent found itself with the possi-
bility of facing an election in a limited unit and Supp's lack
of an acceptable response to the incentive program, which
made his presence no longer tolerable Accordingly, I find
and conclude that by discharging Albert W Supp on May
7, 1975, Respondent herein violated Section 8(a)(1) and (3)
of the Act
Upon the foregoing findings of fact, and upon the entire
record herein considered as a whole, I make the following
CONCLUSIONS OF LAW
1 Respondent Montgomery Ward & Co, Incorporated,
is an employer engaged in commerce and in operations
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act
2 Chauffeurs, Teamsters, Warehousemen, and Helpers
Local Union No 144, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen, and Help-
ers of America, is a labor organization within the meaning
of Section 2(5) of the Act
3 By discharging Albert W Supp because he engaged in
union activities, as found above, Respondent herein violat-
ed Section 8(a)(3) of the Act
4 By the acts and conduct set forth in Conclusions of
Law 3, by interrogating employees concerning their union
activities and the union activities of other employees, by
requesting employees to engage in surveillance of union
meetings, by soliciting and adjusting grievances in order to
dissuade employees from engaging in union activities, and
by threatening employees with the loss of benefits in the
event of unionization, Respondent herein violated Section
8(a)(1) of the Act
5 The aforesaid unfair labor practices have a close, inti-
mate, and substantial effect on interstate commerce, within
the meaning of Section 2(6) and (7) of the Act
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I will recommend that it be ordered
to cease and desist therefrom, and that it be required to
take certain affirmative actions designed to effectuate the
purposes and policies of the Act As noted above in foot-
note 9, this Respondent has repeatedly been found guilty
and has frequently been ordered to cease and desist from
engaging in unfair labor practices which have occurred in
stores located throughout the United States This case is
but one more instance in which it has flouted the Act after
having been placed under specific directives by this Agen-
cy not to do so For this reason, and also because the viola-
tions found herein include a discriminatory discharge and
go to the very heart of the Act, this case warrants the rec-
ommendation and adoption of a broad 8(a)(1) order J C
Penney Co, Inc (Store #1814), 172 NLRB 1279, fn 1
(1968), Adam & Eve Cosmetics, Inc, 218 NLRB 1317
(1975) The recommended order will also provide that Re-
spondent be required to offer to Albert W Supp reinstate-
ment to his former or substantially equivalent position and
to make him whole for any loss of earnings in accordance
with the Woolworth formula,10 with interest thereon com-
puted at 6 percent per annum I will also recommend that
Respondent be ordered to post the usual notice notifying
employees of their rights and of the results in this case
Upon the foregoing findings of fact, conclusions of law,
and pursuant to Section 10(c) of the Act, I make the fol-
lowing recommended
ORDER 11
The Respondent, Montgomery Ward & Co, Incorporat-
ed, and its directors, officers, supervisors, agents, succes-
sors, and assigns, shall
I Cease and desist from
(a) Interrogating employees concerning their union ac-
tivities or the union activities of other employees
(b) Engaging in surveillance of union activities of its em-
ployees and requesting employees to assist it in engaging in
the surveillance of union activities of other employees
(c) Soliciting and adjusting grievances and granting ben-
efits to employees to dissuade them from engaging in union
activities
(d) Threatening employees with loss of benefits in the
event the store becomes unionized
(e) Discouraging membership in, or activities on behalf
of, Chauffeurs, Teamsters, Warehousemen, and Helpers
Local Union No 144, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen, and Help-
ers of America, or any other labor organization, by dis-
charging or by discriminating against employees in their
hire or tenure
(f) By any means or in any manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed to them by Section 7 of the Act
10 F W Woolworth Company 90 NLRB 289 (1950)
11 In the event no exceptions are filed as provided by Sec 10246 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
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2 Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act
(a) Offer to Albert W Supp immediate and full rein-
statement to his former position or, if such position no
longer exists, to substantially equivalent employment, with-
out prejudice to his seniority or other rights previously en-
joyed, and make him whole for any loss of pay suffered by
him by reason of the discrimination found, in the manner
described above in the section entitled "Remedy "
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll and other records necessary to analyze the amount of
backpay due under the terms of this recommended Order
(c) Post at Respondent's place of business at Terre
Haute, Indiana, copies of the attached notice marked "Ap-
pendix " 12 Copies of said notice, on forms provided by the
Regional Director for Region 25, after being duly signed
by a representative of Respondent, shall be posted immedi-
ately upon receipt thereof, and be maintained by Respon-
dent for 60 consecutive 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
(d) Notify the Regional Director for Region 25, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith
12 In the event that this Order is enforced by a Judgment of the 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