Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

Jun 24, 1976

225 N.L.R.B. 112 (N.L.R.B. 1976)

112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Montgomery Ward & Co., Incorporated and Ware-
house , Mail Order, Office , Technical and Profes-
sional Employees Union , Local No. 743, affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Cases 13-CA-14534 and 13-RC-13728
June 24, 1976
DECISION AND ORDER
By MEMBERS JENKINS, PENELLO, AND WALTHER
On April 9, 1976, Administrative Law Judge
Thomas R. Wilks issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
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., Incorporated, Posen, Illinois, 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
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS, Administrative Law Judge: A hearing
in this consolidated proceeding was held on February 9,
10, and 11, 1976, at Chicago, Illinois, based on a charge
filed against Montgomery Ward & Co., Incorporated, on
July 23, 1975, by Warehouse, Mail Order, Office, Techni-
cal and Professional Employees Union, Local No. 743, af-
filiated with The International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, here-
in called the Union, and a complaint issued by the acting
Regional Director on October 30, 1975, alleging that the
Respondent violated Section 8(a)(1) of the National Labor
Relations Act, as amended, by soliciting and remedying
employee grievances and by promising and granting bene-
fits in conditions of employment and by threatening to re-
frain from instituting a scheduled wage increase in order to
induce employees to refrain from engaging in or support-
ing the Union.'
Pursuant to Stipulation for Certification Upon Consent
Election executed in the representation case by the Re-
spondent and the Union, and approved by the Regional
Director for Region 13 on June 26, 1975, an election was
conducted among the Respondent's employees on July 25,
1975. The unit in which the election was conducted consist-
ed of: "All service, parts, clerical, sales, maintenance, ship-
ping and receiving employees employed by the employer at
its Posen, Illinois, service facility; excluding professional
employees, confidential employees, guards and supervisors
as defined in the Act." The tally disclosed that, of 102 valid
votes counted, 49 votes were cast for the Petitioner, 53
were cast against it, and 5 ballots were challenged. On Au-
gust 1, 1975, the Union filed timely objections to conduct
affecting the results of the election with the Regional Di-
rector. The Respondent contends that the Union failed to
serve a copy of the objections upon the Respondent on or
before August 1. On October 31, 1975, a report on objec-
tions and challenges and order consolidating cases and no-
tice of hearing on objections issued That report disposed
of the challenges by finding, pursuant to a stipulation of
the parties, that one challenged voter was ineligible to vote
and that the remaining challenges were no longer determi-
native of the results of the election. Because of the identity
of issues in the objections and the unfair labor practices
alleged the Regional Director ordered the two cases con-
solidated for hearing before an Administrative Law Judge.
On the entire record in this case, including my observa-
tion of the witnesses and after due consideration of the
briefs submitted by Respondent, General Counsel, and the
Union I make the following.
1 The complaint was amended at the hearing to allege as additional agents
of the Respondent Patrick A Favuzzo, assistant service manager, Donald
Harvey, service manager, and Jack B Brousard assistant labor relations
director Their status is not in dispute, and I find that at all times material
herein they acted as agents of Respondent within the meaning of Sec 2(13)
and (11) of the Act
2 On March 15, 1976, the General Counsel moved to reopen the record
for the purpose of consolidating the instant case with a proceeding in Case
13-CA-15118 wherein complaint had issued on March 9, 1976 The latter
case involved the Respondent and similar allegations of 8(a)(I) conduct but
at a different unit and different geographical location No indication was
given as to the relevance of evidence adduced in the instant proceeding to
Case 13-CA-15118 On March 24, 1976, 1 denied the motion on the ground
that sufficient justifiable reason was not given to delay issuance of a deci-
sion in this matter
225 NLRB No. 15
MONTGOMERY WARD & CO, INCORPORATED 113
FINDINGS OF FACT Ing room. The choice of Harvey's office for these preelec-
tion meetings was made by Brousard Brousard, an attor-
I. THE BUSINESS OF THE RESPONDENT ney, testified that he is responsible for labor relations for
Respondent is an Illinois corporation which maintains
its principal office and place of business at Montgomery
Ward Plaza, Chicago, Illinois. It is engaged in the retail
sale of merchandise and maintains a service center locat-
ed at 14736 South Campbell, Posen, Illinois (herein called
Posen service center). During the 12 months preceding the
issuance of complaint herein, a representative period, Re-
spondent sold and distributed merchandise in a gross value
which exceeded $500,000, and, during the same period of
time, purchased and received goods and materials valued
in excess of $50,000 from outside the State of Illinois. Re-
spondent is an employer engaged in commerce within the
meaning of the Act and it will effectuate the policies of the
Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
In January 1975, the Respondent transferred its Gary,
Indiana, service center to Posen, Illinois. The Posen service
center employs technicians who make service calls in cus-
tomers' homes pursuant to repair work guaranteed under
appliance warranties as well as other repair work. The out-
side technicians comprise various departments depending
upon the type of product that is serviced; i.e., television,
washer-dryers, lawnmowers, tractors, etc. Also employed
at the service center are technicians who perform work on
appliances which are brought in for service. In addition to
these outside and inside technicians the service center also
employs telephone solicitors for the purpose of contacting
customers to induce them to purchase service contracts.
Additionally, various clerical and data processing employ-
ees are employed at the center The manager of the service
center is Ronald Harvey who is assisted by Patrick Favuz-
zo, the assistant manager.
Respondent is alleged to have violated the Act and en-
gaged in election interference by the conduct of its assis-
tant labor relations manager, Jack Brousard, and Service
Manager Harvey in the manner in which these two individ-
uals conducted a series of employees' meetings on July 21,
22, 23, the Monday, Tuesday, and Wednesday preceding
the Friday election of July 25, 1975. On those 3 days a
series of about 12 meetings of groups of employees ranging
in numbers from 6 to 12 were held in Harvey's office. The
employees were invited by Assistant Manager Favuzzo,
and the meetings were presided over by Brousard after a
few introductory remarks by Harvey. Depending upon the
subject matter raised, Harvey participated to some extent
in the meetings. The meetings were scheduled for periods
of time not to exceed 90 minutes and generally averaged
about an hour. Although the Respondent conducts regular,
weekly meetings among its technicians, such meetings are
normally conducted in the combination lunchroom-train-
the Respondent and that his duties consist of representing
the Respondent in labor negotiations as well as grievance
and arbitration cases arising from contracts which have
been negotiated. Also part of his duties are those of
"counter-organization activities of the company." In fulfill-
ing those latter duties Brousard has found that the smaller
group meetings are preferable because they are "more
comfortable in getting across what I want," and that em-
ployees are "more responsive." Upon cross-examination he
testified that his preference for smaller groups is based in
part upon the fact that employees asked more questions in
smaller groups. In selecting Harvey's office Brousard also
concluded that the lunchroom-training room would be
subject to interruptions in view of the presence of vending
machines in the room and the disinclination of the employ-
er to tell its employees to refrain from using the area during
that period of time. The election was held in the training-
lunchroom. Harvey's office which had been utilized in the
past for employee discipline and for ratings of employees
was never used for the- purpose of conducting meetings.
Furthermore, the regular meetings conducted in the lunch-
room-training room were conducted for the purpose of
making announcements to employees with respect to
changes in employer procedures and company policy.
There is no evidence that in either private meetings or in
the general meetings conducted of the technicians, occa-
sionally attended by clericals, that the employer had en-
gaged in solicitation of employees' complaints or griev-
ances prior to the week of July 21, 1975.
As the employees were seated in a circular arrangement
around the manager's desk, Harvey commenced each
meeting by introducing Brousard who sat to his side. Har-
vey described Brousard's position with the company and
told them that he was there to answer any questions they
may have regarding the upcoming election. What Brous-
ard, and on occasion Harvey, stated at those meetings is
subject to varying versions, but essentially the General
Counsel's witnesses' testimony tracks the account as given
by Brousard. Brousard stated that he explained the me-
chanics of the election procedure, that he had with him a
copy of the notice of election, and he described specifically
the voting procedures. Other than a copy of the notice of
election he had no prepared text, but he did bring with him
material upon which he could take notes as the meeting
progressed. The area of greatest factual dispute centers
upon the transition from these opening remarks to the
phase of the meetings wherein employees raised a series of
complaints concerning working conditions. In oral argu-
ment and in brief Respondent takes the position that it did
not solicit grievances at these meetings, but rather the is-
sues that were raised at the meetings had been raised in the
Union's campaign propaganda which preceded the meet-
ings, and that Brousard was "put on the spot" by union
protagonists who came to the meetings for the purpose of
specifically raising grievances and complaints. Thus, Har-
vey testified that questions from employees "started pop-
ping into the conversation." The Respondent introduced
into evidence certain union campaign propaganda in sup-
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
port of its argument. Harvey testified that he was familiar
with this literature and in possession of it prior to the meet-
ings. On cross-examination he conceded that such was
clearly impossible because the face of some leaflets indi-
cates that they could not have been distributed prior to the
meeting. Harvey revealed himself to be completely lacking
in candor, not only with respect to his testimony regarding
the union literature, but by the evasiveness in which he
responded to questions concerning the transition of the
meeting from one of exposition of election mechanics to
that of a raising of employees' questions and complaints.
Brousard testified that after he touched upon the mechan-
ics of voting that he told the employees: ". . . I didn't
understand why you want a union since you are getting the
same thing as the people at Rosemont " The Rosemont
service center is what is called a tandem or sister service
center at Rosemont, Illinois, which is currently represented
by the Union Although Brousard testified that he did not
solicit grievances or complaints of employees he conceded
that at the beginning of each of his meetings he told em-
ployees that: "the meetings were open and I welcome their
questions, their observations, their arguments, their con-
cerns, anything they wanted to talk about and we got a lot
of discussion."
A series of witnesses called by the General Counsel testi-
fied to essentially the same version with some variation.
Thus testified parts clerk Cheryl Duck: "[he said] that he
couldn't see how he wanted it [the Union] . . . we had
everything that Rosemont had"; TV repairman Henry Till-
man: "there must be some reason that we would go to the
extent of trying to get a union . . . must be some dissatis-
faction in the group since we have the same benefits as
Rosemont." Some employees testified to a much more ex-
plicit solicitation of employee concern. Inside appliance re-
pairman John Ciszon testified that Brousard "asked what
kind of beefs" the employees had. Several other employees
similarly testified to an explicit solicitation of complaints.
Their testimony, however, is extremely vague, cryptic, and
bereft of the context of the comments. I therefore conclude
that the statement of Brousard which precipitated the dis-
cussion of complaints occurred precisely as Brousard had
testified; that is, he told them the meeting was wide open,
welcomed them to express their concerns, and expressed a
wonderment as to what could be gained by union represen-
tation. I find the total context of the situation to be nonrhe-
torical.
It is clear that Brousard did not have a gripe session
forced upon him as suggested by Respondent's argument,
but rather his opening remarks were calculated to elicit a
verbalization of employee grievances which he admitted
were known to him to exist prior to the meetings.
Brousard's decision to allot 90 minutes to each meeting
despite the fact that explaining election mechanics took
from 15 minutes to half an hour proved to be quite far-
sighted inasmuch as a discussion of employees' complaints
filled the greater portions of the meetings thus expanding
them to an average of an hour and some beyond that. A
wide variety of employees' questions, concerns, and com-
plaints were then raised at these meetings following
Brousard's opening statement. Both Brousard and Harvey
testified that no promises were made to remedy any of the
complaints, nor were promises made to institute benefits.
However, Brousard took notes as employees registered
their complaints and, either he or Harvey, at the very least
promised to "look into it," "check it," or "consider it." A
very critical element of Brousard's message was that the
employees were receiving the same benefits as the Rose-
mont service unit which was represented by the same
union, and that employees would have nothing to gain
from voting for the Union. He stated he was particularly
disturbed when the raising of some of the complaints dis-
closed that, in some cases, Posen did not have the same
benefits as Rosemont. Upon discovering this Brousard tes-
tified that he became very upset with Harvey for not advis-
ing him beforehand of the differences. Some of the com-
plaints registered were as follows: technicians upon being
newly hired at Rosemont were issued handtools at the ex-
pense of the employer but not at Posen; technicians were
being assigned too many service calls and were unable to
finish their assigned calls within the normal workday, and,
unlike the Rosemont unit, they were required at Posen to
contact the customer and reschedule their own calls in-
stead of having an office clerical fulfill that function; un-
like Rosemont, Posen service technicians were compelled
to accept single assignments in high crime areas instead of
having a fellow employee accompany them; technicians
were not being compensated time and a half for work per-
formed after an 8-hour day unless advanced clearance was
given which was alleged to be a rarity; the employer did
not communicate with its employees and was not interest-
ed in its employees' grievances; and, finally, the telephone
solicitors complained that they were not receiving the same
rate of commission upon selling a service contract as tele-
phone solicitors at Posen Finally, a question was raised as
to whether the employees at Posen would get their regu-
larly scheduled cost-of-living and wage increase. Brousard
repeatedly reinforced a statement to the employees that it
was the employer's policy to grant them the same benefits
as Rosemont and that policy would be followed. It is clear
from the record that the employees were informed that the
employer would look into its complaints and that the poli-
cy of uniformity would be enforced if the Union did not
win the election. The logical inference to be made from his
remarks was that if the Union lost the election whatever
benefits that Rosemont had that Posen did not have would
be effectuated at Posen. Thus Brousard testified: "I said
that if the union did not get in they would continue to
receive the same treatment and benefits as the employees
at Rosemont, yes."
After each meeting Brousard went over all the com-
plaints that were raised and discussed them with Manager
Harvey. As Brousard testified on cross-examination: "I
would have discussed almost all of them, that was the rea-
son, you know I don' t listen to those things idly, we dis-
cussed almost everything that was raised at those meet-
ings." With respect to the complaint of lack of
communication Brousard testified on cross-examination:
"I told Harvey we should listen to the techniques-we
should use those meetings for employee communications-
one of the main complaints-that there was a lack of com-
munication between-technicians-and their immediate
supervisors and I expected that he should do something
MONTGOMERY WARD & CO, INCORPORATED 115
about it." Both Brousard and Harvey denied making any
promise to set up regular grievance sessions, and that the
conversation between Harvey and Brousard occurred after
the meeting according to Brousard. According to the testi-
mony of Harvey and Brousard their response was always
in the nature of "we will look into it." However, as indi-
cated, Brousard was extremely upset over that particular
complaint and viewed it as one of the foremost of the com-
plaints. Harvey's testimony was that he was surprised by
this complaint and that he stated to employees in the meet-
ing: "Well my door has always been open. If you got a
problem the door is always open." Service technician Rob-
ert Sell testified that when in his meeting one technician
raised as a complaint the lack of communication Brousard
turned to Harvey and asked "what seems to be the prob-
lem." Harvey indicated that he didn't think there was a
problem and then Brousard stated "they could set up a
bitch session like a grievance session and straighten out the
problems" to which Harvey did not respond. In view of
Sell's vivid recollection of this incident which is in accord
with Brousard's testimony of chagrin and displeasure with
Harvey, I credit Sell's version of Brousard's statement.
However, I think that, under the circumstances, even under
Brousard's version, there was an implicit promise to correct
the situation. There is no evidence that a regular grievance
session was actually set up either before or after the elec-
tion.
With respect to the handtools complaint, outside TV re-
pairman Tillman testified that Harvey stated: "This is a
minor situation that could be taken care of." Brousard tes-
tified that the issuance of handtools to technicians which
indeed had been occurring at Rosemont was contrary to
the national policy of the Respondent. However, at the
meeting, according to Brousard's own testimony, he did
not tell the employees of the company's national policy in
this regard but merely stated that he would "look into it."
On cross-examination he explained that the reason he
would look into it was for purposes of his own credibility
since he had been stating that everthing was the same at
tandem units. There was no subsequent change with re-
spect to this policy at Posen before or after the election.
With respect to complaints that employees were not re-
ceiving the same amount of overtime compensation as Po-
sen, Harvey and Brousard testified that the policy in this
regard was identical at both the units and this was what
they responded at the meetings Harvey also testified that
to every complaint he or Brousard promised: "to look into
it." The evidence is insufficient to conclude that any
change in practice was effectuated regarding overtime.
With respect to the scheduling of too many calls, the
uniform response again by Harvey and Brousard was that
they would look into it. They did look into it, found no
disparity and no changes were made The evidence is insuf-
ficient to indicate that the disparity did exist or that any
meaningful change was made in regard to the number of
calls assigned.
With respect to the scheduling of calls Brousard conced-
ed that this was a general policy that was peculiar to the
manager of the individual service unit and varied from unit
to unit across the country. Some managers felt that the
office should reschedule calls whereas other managers felt
that the individual serviceman should call his own custom-
er and reschedule a call that he was not able to complete
during his workday. However, Brousard did not tell this to
the employees when a complaint was raised, But merely
stated: "I said I'd look into it." Similarly, Harvey acknowl-
edged that his response was that he did not know for a fact
that Rosemont had their calls scheduled by the office but
"I would look into it and find out." After checking with
Rosemont he found out that it was a fact that rescheduling
was handled from the office. Within a week after the elec-
tion at a general meeting of servicemen , Harvey an-
nounced to the technicians that all rescheduling was to be
done by the dispatcher of the office.
With respect to the complaint that more than one techni-
cian should be assigned to a call in a high crime area,
Henry Tillman credibly testified that Harvey' s initial re-
sponse was that by assigning one man only one man ended
up getting "beat up." Whereupon Brousard retorted that
he would "hate to be that one man." Thereupon, Harvey
stated that in the past no one had asked him for a partner
on such an assignment and that had they done so they
would have been granted permission.
With respect to the complaint raised by the telephone
contract solicitors that the rate of commission varied from
that at Rosemont, the Respondent not only looked into it
but accommodated the desires of its contract solicitors
upon inquiring specifically of those desires, and changed
its rate of commission policy at Posen to conform to that
granted at Rosemont within a day or so after learning of
the disparity at a point in time which preceded the election.
It appears that there was a different rate of commission
that was being granted for sales of regular service contracts
for individual appliances and the so-called golden con-
tracts which covered a multitude of appliances The rates
of commission did not comport to that paid at Rosemont.
Rosemont paid no commission for "golden contracts," but
5 percent on regular contracts. Posen paid $6 for every
golden contract sold, but only 2 percent for every regular
contract. After one of the first meetings where this was
raised Harvey checked it out with the Rosemont unit, went
back to his employees in the contract department, told
them of the situation, and advised them that pursuant to
their decision it would retain the present system at Posen
or institute a system to comport with Rosemont. Almost
immediately thereafter the contract solicitors conducted a
vote among themselves and the majority decision was to
change to the Rosemont system. Harvey was so advised
and less than a day after being advised announced that the
rate of commission would be changed to reflect the Rose-
mont rates. As to the impact on the earning capacity of the
individual employee, that would depend upon the individu-
al employee's peculiar talents to sell one type of policy
rather than the other. The record indicates that some em-
ployees concentrated on selling golden contracts, and that,
therefore, when the system was changed to reduce the rate
of golden contracts and increase the rate of regular con-
tracts their earnings would have been impacted. Thus, the
employer argues that no benefit was instituted prior to the
election to affect the outcome of the election and that it
was "six of one and half a dozen of the other." I agree with
the employer that the evidence is not sufficient to establish
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the earnings of the contract solicitors generally in-
creased by these changes in working conditions prior to the
election . But, in any event , the record is clear that the
change arose as a result of an expression of preference by
employees as to their mode of compensation , and a change
was effectuated prior to the election . They were granted
what they considered to be a benefit. Moreover, the grant-
ing of this benefit was a clear signal to all employees that
other complaints would be remedied.
Finally, a question raised by numerous employees at
these meetings was whether or not they were to receive an
expected wage increase on August 1, 1975. The granting of
an annual wage increase at the Posen service center is di-
rectly geared to the granting of a wage increase at the
Rosemont , Illinois, service center. This has been brought
about as a result of a deliberate national policy of the Re-
spondent. That policy was described by Brousard as fol-
lows: Respondent has numerous contracts with Local 743,
but its negotiations with Local 743 are part of a larger
group. That is to say that the International Union main-
tains a Montgomery Ward council composed of represen-
tatives of local unions throughout the country which repre-
sent various Montgomery Ward facilities including nine
catalog houses. Each catalog house is represented by a lo-
cal of the Teamsters union. Seven of the nine catalog hous-
es are adjacent to a retail store outlet which is also repre-
sented by the same local of the Teamsters union.
Twenty-five to thirty retail stores are represented by Team-
sters locals as well as several large distribution centers. In
each of the nine catalog house locations there are also a
number of other facilities that are represented by Team-
sters locals and one of those facilities or functions are re-
pair service centers such as the Posen service center and
the Rosemont service center in Illinois . Within the service
centers are units composed of customer service technicians
and clerical employees . Brousard explained that central ne-
gotiations with the Teamsters union take place for the nine
catalog houses, the attached stores, the detached stores,
and the distribution centers. The negotiations are simulta-
neously conducted in Chicago. The Montgomery Ward
council is presided over by Donald Peters, who is also the
president of Local 743. As a result of the centralized bar-
gaining, one basic contract is negotiated for all nine cata-
log houses , but each catalog house negotiates its own indi-
vidual contract which provides variations for wage rates
for each location and perhaps a variation on holiday pay.
With respect to provisions covering seniority, arbitration,
grievance procedures , work assignments , etc., the contracts
are identical as is true with the basic contract with the
retail store facilities. With respect to the repair service
units, they are part of the "metro district contract." Thus,
the Rosemont contract is part of the "Chicago metro dis-
trict" contract which also covers the Franklin Park ware-
house catalog sales unit , repair service units. The contracts
are identical for the most part except for the variation in
the wage rates. The benefit program includes group insur-
ance program, the long term disability program, the retire-
ment program, the vacation program, employee discounts,
jury pay, funeral pay, and at one time the profit-sharing
program which now is no longer in existence . The benefit
program is identical in all of the Respondent 's contracts
with the Teamsters union . The Teamsters contracts cover a
total of 15,000 employees. The Respondent employs ap-
proximately 125,000. The companywide benefit program
for all 125,000 employees is the same whether they are
represented by the Teamsters union , other labor organiza-
tions, or whether they are represented by no union. The
sole exception involves the Respondent 's private trucking
operation called the "ward fleet" whereby the over-the-
road drivers contribute to the Teamsters health and welfare
pension fund. All other Respondent drivers possess the
same benefits as other employees. The centralized bargain-
ing is held pursuant to mutual agreement of the Union and
the Respondent . The Union presents at the centralized ne-
gotiations a consolidated list of proposals for each separate
unit. Separate negotiations take place with the various lo-
cal representatives in which individual concerns are dis-
cussed. However, despite the fact that there is one basic
benefit program and a basic contract , minor variations in
conditions of employment do occur, as, for example, the
issuance of handtools at Rosemont and the amount of pre-
mium paid contract solicitors at Rosemont is not covered
by the union contract.
With respect to the nonunionized facilities, it is
Respondent 's deliberate nationwide policy referred to as
the "tandem policy" to implement all the economic fea-
tures of the union contract at tandem nonunionized loca-
tions. This was the Respondent's practice with respect to
the Gary service center where it implemented the wage
rates, payment of overtime, holidays, etc., which were ne-
gotiated at the Rosemont service center. That practice con-
tinued to be applied after the transfer of the Gary service
center to Posen , Illinois. The annual wage increase imple-
mented at Rosemont on August 1, 1975, was also sched-
uled to have been effectuated at Posen on the same date.
The increase included a general wage increase plus a cost-
of-living allowance . Brousard and Harvey also testified
that it was the Respondent's policy to pay the clerical em-
ployees at Posen 10 cents per hour more than was paid to
the clerical employees at Rosemont. This testimony was
uncontradicted. Harvey discovered, however, after review-
ing the discussions at the preelection meetings that not all
clericals at Posen were paid the additional 10 cents per
hour as required by that policy.
The tandem policy with respect to the annual wage in-
crease was, of course, well known by the employees and a
great number of questions arose as to whether they were
going to receive their annual wage increase on August 1.
Brousard testified that his response to the questions regard-
ing the status of the scheduled wage increase was that if the
Union failed to obtain a majority on the July 25 election
then the increase would be granted, but if the Union did
obtain a majority the matter would be negotiated with the
Union. He told the employees that he had no way of know-
ing how quickly negotiations would take and how soon a
contract would be executed. He conceded that sometimes
negotiations can be protracted and at one meeting he indi-
cated that it could take as long as 6 months. He conceded
that he did refer to a unit in Tampa, Florida, which was
certified in December and thereafter a contract was execu-
ted on June 1. Brousard stated that he told the employees
that retroactivity is also negotiable. In substance this com-
MONTGOMERY WARD & CO., INCORPORATED 117
ports with the testimony of most of General Counsel's wit-
nesses. Harvey testified that he recalled Brousard stating
that if the Union won the election: "that from that point
on everything was negotiable because they would be . . . it
would be between the two the Union and the company to
negotiate these things." Based on my observation of Brous-
ard as a witness, his ability to recall, to place statements
within context, and the substantial corroboration of his
version by most other General Counsel witnesses, I discre-
dit the version of General Counsel witness Michael Young
that Brousard stated flatly that the employees "won't get a
cost of living raise" if the Union wins. However, it is quite
clear from Brousard's testimony and the testimony of Gen-
eral Counsel's witnesses that the message to the employees
was if the Union did not win the election on July 25, the
August 1 increase would be effectuated automatically in
accord with the employer's tandem policy; but if the
Union did receive a majority of ballots cast on the Friday
election on July 25 the wage increase would be deferred
and its ultimate fate subject to the give and take of collec-
tive bargaining. The obvious implication was that it could
be lost entirely or effectuated later with or without retroac-
tivity.
The Union failed to obtain a majority of ballots at the
election, and the Respondent put into effect on August 1,
1975, in accord with its tandem policy with Rosemont, an
8-percent increase in wages plus a 12-percent cost-of-living
increase. Additionally those clerical employees, who were
not paid at the 10 percent an hour in excess of the Rose-
mont rate were also brought up an additional 10 cents an
hour. August 1, of course, was the fifth working day fol-
lowing the election and the last day on which objections to
the election could be timely filed.
It is important to keep in mind that a discussion of the
wage increase during the meetings was intimately connect-
ed to and within the context of Brousard's message to the
employees that there was no reason for them to seek union
representation because of the employer's nationally prede-
termined tandem policy. Thus, Duck testified: "he couldn't
see how we wanted it . . . we had everything that Rose-
mont had...." Joy Pichler's credible testimony was that
she asked if the Union would be able to obtain a job bid-
ding procedure and the response was: "They said it didn't
matter that supervisors could hire and place employees
where they want to." DeSalvo testified that the employees
were told that they would get the same benefits as Rose-
mont plus they would have to pay dues. Dorothy Ward
testified that Brousard stated. "The Union would not be of
any help to us at all . . . it could not negotiate anything
. . we would be paying out dues for nothing...." Jack
Laubaugh, an outside technician, testified that Brousard
stated that there was no real need for a union because the
employees were receiving the same benefits as Rosemont.
Michael Young testified that Brousard stated "that he
doubted recognition would help our bargaining power
since we already have all the benefits of our brother satel-
lite Rosemont " Henry Tillman testified that Brousard told
31t should be noted that there were five determinative challenges that
remained to be disposed of before certification could issue even if no objec-
tions were filed
his group that the Union would be of no advantage.
Brousard's rebuttal to this testimony was as follows:
Q. (By Mr. Curran) There was testimony here rela-
tive to a statement that you would have made saying
that if the union won that you would not negotiate
anything that the employees would get the same con-
tract at Rosemont. Do you recall anything along those
lines?
A. I say that probably, in most of the meetings, that
if the union won that we would negotiate a contract.
I did tell the people that we had presently in the
company uniform benefits, in the course of these dis-
cussions we had uniform benefit programs nationwide
which were incorporated in our union contracts, I said
the wages and benefits were subject to bargaining, but
I told them that our bargaining experience resulted in
our still having uniform programs, but I, in fact, was
very careful to make it clear to them that wages, and
benefits were bargainable subjects, but I did tell them
that they were personally receiving the same things as
Rosemont, that they had had identical benefits at
Rosemont as the Rosemont employees benefit pro-
grams that were in their contract were the same as
their benefits programs and, probably, at a couple of
meetings had suggested to them that they could decide
for themselves as to what they thought they could bar-
gain something different than that employees at Rose-
mont than we did for other employees.
On cross-examination Brousard testified:
Q. (By Mr. Rubin) All right Mr. Brousard you have
told us on at least two occasions, I believe, that you
told the employees that you personally did not under-
stand why any of them would want a union or words
to the effect?
A. Words to that effect, yes
Q. Am I correct that that was your raising of this
was as part of your campaign, which is embodied in
the small group meetings?
A Well, to explain to them that they are receiving
the same benefits as union employees, yes, that cer-
tainly is part of it.
Q. And to explain to them the Company's point of
view, there is no need for a union, right?
A Yes, yes.
I conclude that Brousard in effect told the employees
that they automatically would receive the same benefits as
the unionized Posen operation if they did not select the
Union, whereas if they selected the Union, albeit the em-
ployer would go through the motions of negotiation of a
new contract, any such contract would inevitably obtain
the same predetermined nationwide benefits and wage
rates as was granted at Posen. Even under Brousard's ver-
sion the message was clear, a union victory would be a
futility, and that in no event would union representation
result in improvements of working conditions.
IV ANALYSIS AND CONCLUSIONS
I find that the Respondent has violated Section 8(a)(1) of
the Act by conducting a series of meetings of employees
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within a few days of the scheduled election during which it
solicited its employees' complaints and implicitly promised
to remedy those complaints, for the purpose of eroding
support among the employees for the Union immediately
prior to the election. Reliance Electric Company, Madison
Plant Mechanical Drives Division, 191 NLRB 44 (1971),
enfd 457 F.2d 503 (C.A. 6, 1972); Shulman's Inc of Nor-
folk, 208 NLRB 772 (1974); Ken McKenzie's, Inc, 221
NLRB 489 (1975); Litton Dental Products Division of Litton
Industrial Products, Inc., 221 NLRB 700 (1975). I conclude
that the employer additionally violated Section 8(a)(1) of
the Act by remedying the complaint of the telephone solici-
tors regarding their mode of commission payment prior to
the election
I further find that Respondent violated the Act by in-
forming the employees that their wage increase would not
be implemented as scheduled if the Union won the elec-
tion. Respondent's argument that Brousard was merely ex-
plaining "the legal consequence of a union victory" is with-
out merit. It is clear that if in the normal course of events
employees would have received a wage increase the mere
pendency of a question concerning representation would
not impede implementation of such a raise. Rather, an em-
ployer who withholds such increase and tells employees
that the reason for the withholding is a pending petition
violates the Act Florida Steel Corporation, 221 NLRB 371
1975), GAF Corporation, 196 NLRB 538 (1972), Montgom-
ery Ward and Co., Incorporated, 187 NLRB 956 (1970). The
fact that a union has been certified does not justify an
employer's withholding of a wage increase that otherwise
would have been implemented in the absence of such certi-
fication. The Board has found that an employer violated
the Act where that employer withheld a promised wage
increase because in the interval between the promise and
the effective date of the wage increase the employees se-
lected a union to represent them, and the employer antici-
pated that wages would be part of any package it would be
asked to agree to in a collective-bargaining agreement
United Aircraft Corporation, Hamilton Standard Division
(Boron Filament Plant), 199 NLRB 658 (1972). Also, an
employer who advised his employees that the only reason a
pension plan was not implemented was because of the un-
certainties of prospective bargaining demands by a newly
certified union thereby violated Section 8(a)(1) of the Act.
Tube-Lok Products, Eastern Division of Portland Wire &
Iron Works, 209 NLRB 666 (1974). Similar conduct is
found violative even in situations where there are appeals
pending contesting the certifications. Russell-Newman,
Manufacturing Company, Inc, 167 NLRB 1112 (1967),
enfd. 406 F.2d 1280 (C A. 5, 1969); Howard Johnson Com-
pany, 172 NLRB 763 (1968). Accordingly, I find that the
Respondent violated Section 8(a)(1) of the Act by telling its
employees that the otherwise automatic wage increase
would not be granted in the event that the Union won the
election because such institution would be subject to nego-
tiation with the Union. I find this particularly violative in
the factual context of this case wherein the employees were
told of the futility of voting for a union.
Additionally, I find that the employer violated the Act
by not only accommodating the contract solicitors with
respect to the commission rate prior to the election but also
by the accommodation of the outside service technicians
complaint with respect to scheduling of calls a week after
the election, and by the institution on the fifth working day
after the election of a 10-cent-an-hour additional wage in-
crease for certain clerical employees who had not been re-
ceiving the additional 10-cent rate above the Rosemont
clerical rate of compensation. Such action is clearly a re-
ward to employees for voting against the union and not
only constitutes conduct sufficient to set aside an election
but is also violative of the Act. Westminster Community
Hospital, Inc, 221 NLRB 185 (1975); Shulman's Inc of
Norfolk, supra, Ralph Printing & Lithographing Co, 158
NLRB 1353 (1966). Finally, I find that the employer by
advising its employees of the futility of seeking union rep-
resentation not only interfered with the election as set forth
in objection no. 1, but also violated Section 8(a)(1) of the
Act. Montgomery Ward and Co, supra, Tube-Lok Products,
supra; Montgomery Ward & Co, Inc, 222 NLRB 965
(1976).'
With respect to the allegation in the complaint that the
Respondent set up a regular system of monthly grievance
meetings with employees I find that the record contains
insufficient evidence to base a finding thereon and I rec-
ommend that this allegation be dismissed.
V. THE OBJECTIONS
Service
The Petitioner filed its objections to conduct affecting
the results of the election with the Regional Office on Au-
gust 1, 1975. The last day for timely service of objections
was the fifth working day after the election which would
have been August 1, 1975 The then secretary to the union
attorney (she is no longer employed by that firm) testified
that on July 30, 1975, she placed a copy of the objections to
the election in an envelope and had it stamped by the of-
fice meter machine and put it in the outgoing mail for
deposit in the mailbox. She testified that she could not
recall precisely the address used but that it was either the
Posen address or the Respondent's State Street address
which is the same address of the Respondent's then coun-
sel Daniel Meany who represented the Respondent at the
representation proceeding. Mr. Meany subsequently left
the employ of the Respondent. Brousard testified that he
talked to the Board agent in charge of the case 2 weeks
after the election to inquire whether objections had been
filed because he had received none. On August 12, 1975,
the Union's attorney forwarded to Brousard a copy of the
objections with a covering letter indicating that he had
been informed that the Respondent's copy of the original
objections dated July 30, 1975, had been mislaid Brousard
testified to receipt of the August 12 letter and attached
copy of the objections shortly thereafter. The record con-
tains only the testimony of Brousard that he informed a
Board agent of nonreceipt. Former counsel Meany was not
° Although this was not alleged in the complaint as an 8 (a)(I) violation, it
was fully litigated and closely related to the allegations in the complaint Cf
Omark -CCI. Inc. 208 NLRB 725 (1974)
MONTGOMERY WARD & CO., INCORPORATED 119
called to testify. (Meany is now an employee of the Re-
gional office. ) Respondent avers that it had not received a
timely copy of the objections . Respondent argues that un-
der Section 102.69 (a) of the Board's Rules and Regulations
it is required that: "Copies of such objections shall imme-
diately be served on the other parties by the party filing
them, and a statement of service shall be made." Further
Respondent cites Section 102 . 112 which provides that:
"Service of papers by a party on other parties shall be
made by registered mail, or by certified mail, or in any
manner provided for the service of papers in a civil act by
the law of the State in which the hearing is pending ." In its
brief Respondent cites the Illinois Civil Practice Act, sec-
tion 13.3 , which provides personal service process and al-
lows for mail service only on out-of -state defendants and
only then when accompanied by publication . Respondent
argues that the objections should be rejected because they
were not timely received.
The Board has held in Sears Roebuck & Company, 117
NLRB 522 (1957), that evidence that a copy of objections
sent by ordinary mail to an address given as a representa-
tion proceeding by the other party is presumptive evidence
of receipt . Cf. Tri-City Paving, Inc., 205 NLRB 174, 185
(1973); Thiele Tanning Company, 128 NLRB 19 ( 1960);
Frederick Sansone Co ., 127 NLRB 1301, 1302 (1960). I do
not find the record evidence sufficient to overcome the pre-
sumption of receipt.
Moreover , the Board has stated in Alfred Nickles Bakery,
Inc, 209 NLRB 1058 , 1059 (1974). "We do not say that
there will be a `slavish ' adherence to form rather than sub-
stance. What we do say, however, is that in order to sup-
port a variance or deviation from the clear requirements of
the Board 's Rules, there must be some showing that there
has been an honest attempt to substantially comply with
the requirements of the Rules, or, alternatively , a valid and
compelling reason why compliance was not possible within
the time required by the Rules."
It is my conclusion that, assuming nonreceipt until on or
about August 12, 1975, the circumstances in this case indi-
cate that the Union made an "honest attempt to substan-
tially comply with the requirements of the rules," and there
has been no demonstration of prejudice by late receipt. Cf.
Certain-Teed Products Corporation , 173 NLRB 229 (1968).5
Substance of the objections
No evidence was submitted in support of Objections 6, 7,
and 8, and the Union stated at the hearing that it did not
wish to "press" these objections Accordingly, I recom-
mend their dismissal.
Petitioner alleges in Objection 3 that Respondent unlaw-
fully interrogated employees as to their union wishes and
desires and engaged in surveillance of union activities and/
or created the impression that union activities were being
kept under surveillance. I find no evidence sufficient to
warrant a finding that Respondent by its supervisors en-
gaged in interrogation of employees other than soliciting
5 In view of the fact that the unfair labor practice charge had been filed
on July 23, 1975, and alleged coercive conduct in the critical election period
Respondent could hardly have been surprised
the complaints at the series of meetings, nor do I find suffi-
cient evidence that the Respondent engaged in surveillance
or gave the impression of surveillance of its employees'
union activities. One witness, contract solicitor Dorothy
Ward, testified to a conversation that she had with Assis-
tant Manager Favuzzo on July 23, 1975, which she said
was initiated by him in the contract section where he invit-
ed her to the training room At the training room when
they were alone at or about 4:30 p.m. she stated that he
inquired of her if she had any "problems." She states that
she asked him what he meant and he responded that "he
heard that the girls at Rosemont were making more money
than the girls at Posen." He refused to explain and stated
"I have heard a lot of things about you." She asked him to
explain and he refused. Favuzzo also testified that he re-
called having a conversation on or about that time with
Ward and that he initiated it because she looked somewhat
depressed, and he asked her what was bothering her. They
did proceed to the training room where Favuzzo states
Ward indicated that she was upset over having been trans-
ferred some months earlier from the position of secretary
to Harvey to her present position. The witness did not
strike me as the type of person who would brood for
months for such a demotion Favuzzo testified that Ward
invited him to call her at home and discuss the situation
again which in fact occurred subsequently Although I
credit Ward's version of the conversation, I find that it is
much too ambiguous and enigmatic to conclude that the
Respondent by its agent, Favuzzo, engaged in interroga-
tion of employees' union activity, or surveillance or creat-
ing the impression of surveillance of union activities. There
being no other evidence in the record to support this objec-
tion, I recommend that it be dismissed.
With respect to Objection 5, the Union contends that the
Respondent, by calling employees individually in small
groups at the locus of management authority, interfered
with the election. The Respondent contends that these
meetings were similar to those meetings that the employer
conducted in NVF Company, Hartwell Division, 210 NLRB
663 (1974), which were found by the Board not to have
constituted interference with an election. In that case the
Board rejected a broad, per se, application of the Peoples
Drug doctrine,6 in regard to the practice of calling employ-
ees individually or in small groups into a private area re-
moved from the employees' normal work station. The
Board concluded in NVF that the employer did not inter-
fere with the election by its general manager's conduct dur-
ing the I-month period preceding the election in which he
summoned employees into his office in groups of five or six
to discuss the prospective election. In that case the Board
found that there was no other place in which employees
could be interviewed other than the general manager's of-
fice and, moreover, the general manager's remarks to em-
ployees were noncoercive. The instant case is clearly distin-
guishable As I have found above the employer engaged in
coercive conduct violative of the Act in conducting the
series of meetings in this case. I therefore recommend that
Objection 5 should be sustained.
The balance of the conduct set forth in the objections
6 Peoples Drug Stores, inc, 119 NLRB 634 (1957)
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parallels conduct which I have concluded constitute viola-
tions of Section 8(a)(1) of the Act Accordingly, I recom-
mend that they be sustained and a second election be di-
rected.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 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. The Respondent has interfered with, restrained, and
coerced employees in the exercise of their rights under Sec-
tion 7 of the Act, in violation of Section 8(a)(l) of the Act.
4. Such unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
5. By engaging in the aforesaid unlawful conduct, the
employer interfered with the free choice of employees in
the election.
THE REMEDY
Having found that the Respondent engaged in certain
unfair labor practices, I recommend that it be required to
cease and desist therefrom and from any like or related
conduct, and to post appropriate notices. The Charging
Party argues in its brief that circumstances of this case, in
particular the testimony of Brousard that he utilizes small
group meetings of employees in preelection counterorgani-
zational activities at other Respondent locations, warrant a
nationwide posting of notices My findings of violations
are limited to this particular location. The holding of small
group meetings and the presentation of an employer's
point of view are not violative of the Act per se The man-
ner in which Respondent's agent, Brousard, effectuated his
technique at other locations therefore was not fully litigat-
ed. Accordingly, I find that it would be unwarranted to
recommend posting of notices other than at the Posen lo-
cation which is the only location alleged in the complaint
to have been involved herein
It is further recommended that the election which was
held on July 25, 1975, be set aside and that Case 13-RC-
13728 be remanded to the Regional Director for Region 13
for the purpose of conducting a new election at such time
that he deems that such circumstances permit a free choice
of bargaining representative.
On the foregoing findings of fact, conclusions of law,
and the entire record herein, and pursuant to Section 10(c)
of the Act, I hereby recommend the following:
changes in commission rates paid to contract employees,
changes in procedures for canceling and rescheduling
servicemen's appointments with customers, or other bene-
fits, or promising to establish a regular system of monthly
grievance meetings with employees, or inviting employees
to present their grievances with an express or implied
promise that they will be remedied, for the purpose of in-
fluencing employees to reject representation by Ware-
house, Mail Order, Office, Technical, and Professional
Employees Union, Local No. 743, affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other labor or-
ganization, provided, however, that nothing herein shall be
construed as requiring Respondent to vary or abandon any
economic benefit or any term or condition of employment
which it has heretofore established.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act.
(a) Post at its Posen, Illinois, facility copies of the at-
tached notice marked "Appendix." 8 Copies of said notice
on forms provided by the Regional Director for Region 13,
after being duly signed by the Respondent's representative,
shall be posted by the Respondent immediately upon re-
ceipt thereof and maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for Region 13, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
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
B 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
ORDER7
Respondent, Montgomery Ward & Co, Incorporated,
Posen, Illinois, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Telling employees that in no event would union rep-
resentation result in improvements in their conditions of
employment, or telling employees that wage increases
would not be granted as scheduled if a majority of employ-
ees vote for a union, or announcing or putting into effect
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the National Labor Relations
Act, and has ordered us to post this notice and comply
with what it says.
The National Labor Relations Act gives all employees
these rights-
MONTGOMERY WARD & CO., INCORPORATED 121
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative
of their own choosing
To act together for collective bargaining or mutu-
al aid or protection
To refrain from any and all of these things.
WE WILL NOT do anything that interferes with these
rights.
WE WILL NOT tell employees that in no event would
union representation result in improvements in their
conditions of employment, or tell them that wage in-
creases would not be granted as scheduled if a majori-
ty of employees voted for a union, or announce or put
into effect changes in commission rates paid to con-
tract employees, changes in procedures for canceling
and rescheduling servicemen's appointments with cus-
tomers, or other benefits, or promise to establish a
regular system of monthly grievance meetings with
employees, or invite employees to present their griev-
ances with an express or implied promise that they will
be remedied, for the purpose of influencing employees
to reject representation by Warehouse, Mail Order,
Office, Technical and Professional Employees Union,
Local No. 743, affiliated with the International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization,
provided, however, that nothing herein shall be con-
strued as requiring us to vary or abandon any eco-
nomic benefit or any term or condition of employ-
ment which we have heretofore established.
WE WILL NOT in any like or related manner infringe
on rights guaranteed employees by the National La-
bor Relations Act.
MONTGOMERY WARD & CO., INCORPORATED