Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1976

226 N.L.R.B. 184 (N.L.R.B. 1976)

184 DECISIONS OF NATIONAL-LABOR RELATIONS BOARD
Montgomery Ward & . Co., Incorporated and Retail
Clerks Union Local No. 7, chartered by Retail
Clerks International Association, AFL-CIO. Cases
27-CA-4091, 27-CA-4124, and 27-CA-4305
September 30, 1976
DECISION AND ORDER
BY "MEMBERS FANNING, PENELLO, AND WALTHER
On February 25, 1976, Administrative Law Judge
Russell L. Stevens issued the attached Decision in
this proceeding. Thereafter General Counsel filed ex-
ceptions and a supporting brief; Respondent filed
cross-exceptions and a brief and also a brief in an-
swer to General Counsel's exceptions.
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, cross-ex-
ceptions, and briefs and has decided to affirm the
rulings, findings,' and conclusions of the Administra-
tive Law Judge and to adopt his recommended Or-
der.
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 &
1 The Respondent and General Counsel have excepted to certain credibil-
ity findings made by the Administrative Law Judge. It is the Board's estab-
lished policy not to overrule 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 find-
ings
The Administrative Law Judge's Decision is corrected to reflect that from
June 1974 to November 1974 Respondent had two line merchandisers, Law-
rence Lewis and Michael Romancik, at its Fort Collins, Colorado, store,
yielding a store staff at that time of five, not four, as the Administrative Law
Judge found. The Decision is further corrected to reflect that at least one
employee, Paul Bell, had a larger gross income for the year 1974 than De-
partment Managers Watts, Hardeman, Hartfield, and Rosencrans.
Upon careful consideration and detailed analysis of the evidence, the
Administrative Law Judge concluded that Watts, Hartfield, Hardeman, and
Rosencrans, all employed as department managers at Respondent's Fort
Collins, Colorado, store, were supervisors within the meaning of the Act
We have given equally careful consideration to the evidence pertaining to
the duties, authority, and responsibilities vested in each of these department
managers and to the manner in which each in fact exercised his authority,
especially msofar as this relates to the relationship each had with the em-
ployees in his or her department, and, accepting the Administrative Law
Judge's credibility findings, are satisfied that the record supports the Ad-
ministrative Law Judge's determination of supervisory status.
Co., Incorporated, Fort Collins, Colorado, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
MEMBER FANNING, concurring and dissenting:
While I agree with my colleagues'- affirmance of
the Administrative Law Judge's findings that Re-
spondent violated Section 8(a)(1) of the Act in num-
erous particulars set out in the Administrative Law
Judge's Decision, I disagree with their further affir-
mance of a number of dismissals of complaint allega-
tions by the Administrative Law Judge and therefore
I file this dissenting opinion. Specifically, I disagree
with my colleagues' affirmance of the Administrative
Law Judge's failure to find that Respondent violated
Section 8(a)(5) and (1) of the Act on October 16,
1974, by refusing to meet and bargain with the duly
designated bargaining committee of the Charging
Party because that committee included Department
Managers Kenneth Watts, Terry Hartfield, and Ha-
zel Hardeman; that Respondent violated Section
8(a)(3) and (1) of the Act on November 3 and -4,
1974, by suspending and thereafter discharging De-
partment Managers Watts, Hartfield, and Hardeman
for their refusals to remove union buttons while at
,work; that Respondent coerced the employees in the
selection of their bargaining committee in violation
of Section 8(a)(1) of the Act on October 16, 1974, by
refusing to negotiate with the Charging Party bar-
gaining committee as long as it included department
managers; and that Respondent violated Section
8(a)(1) of the Act on October 19, 1974, by threaten-
ing department managers with layoff should they
engage in union activities. Central to each of these
dismissals of complaint allegations by the
Administrative Law Judge was his conclusion that
Department Managers Watts, Hartfield, and Harde-
man were supervisors within the meaning of Section
2(11) of the Act and thus that Respondent' s various
actions directed toward them were not violations of
the Act. As- I conclude that Watts, Hartfield, and
Hardeman were employees, not supervisors, I find
instead that Respondent's various actions directed
toward them were violations of the Act 2
While I discuss the three employees' status below,
certain background facts are pertinent to note pres-
ently. The record reveals that the Charging Party
filed a petition for election at Respondent in Febru-
ary 1974 seeking a unit of "all regularly employed
full-time and part-time employees" at Respondent's
store in Fort Collins, Colorado. The parties thereaf-
ter executed a Stipulation for Certification Upon
2 I make no finding on whether Department Manager George Rosencrans
was also an employee within the meaning of the Act as I would not find, in
any event, that Respondent had violated Sec 8(a)(3) of the Act with respect
to him
226 NLRB No. 33
MONTGOMERY WARD & CO.
Consent Election in a unit comprising "all regularly
employed full-time and part-time employees" but ex-
cluding "professional employees, guards, store man-
ager, operations manager, merchandise manager,
personnel manager and all other supervisors as de-
fined in the Act." Department managers were not
excluded from this stipulation, which was signed for
Respondent by its regional labor relations manager.
Thereafter, the department managers' names were
included by Respondent on the eligibility list for the
election and they subsequently voted without chal-
lenge in the election which the Charging Party won.
Notwithstanding this, Respondent now contends
in this unfair labor practice proceeding that its de-
partment managers, as a group, are supervisors with-
in the meaning of the Act and the Administrative
Law Judge concluded that, with respect to Watts,
Hartfield, and Hardeman, this contention was meri-
torious. In arriving at this conclusion, the Adminis-
trative Law Judge relied on an admixture of general
perceptions of the role of a department manager and
specific findings on the individual duties of the three
department managers in question. I disagree with
both his general perceptions and his specific findings.
Generally, the Administrative Law Judge noted
that there were some 100 to 115 employees in the
store, including some 16 to 20 department managers,
and only 4 persons on Respondent's store staff.' He
concluded that it would not be possible for the store
staff, acting alone, to administer such a work force
without an effective supervisory level, seemingly, the
department managers, intervening. The Administra-
tive Law Judge concluded that without such a level
of authority the ratio of supervisors to employees
would be outside the realm of business reality.
At first blush, the Administrative Law Judge's ob-
servation is quite appealing. I note, however,, the fol-
lowing facts militating against this particular, obser-
vation. First, Respondent's store manager, Stotts,
indicated that he and his store staff were all to be on
the selling floor, observing the progress of the store,
no less than 3 hours per day. Second, with respect to
the three department managers in question, their em-
ployee complements consisted of two full-time em-
ployees in Watts' department; one full-time and one
part-time employee in Hartfield's department; and
one full-time and three part-time employees in
Hardeman's department, a not oy erwhelming num-
ber of employees. Viewed from this perspective, a
supervisory finding concerning these three employees
creates an inordinately high supervisor-to-employee
ratio. Additionally, what general authority the three
had was so circumscribed that, in situations where
3 As my colleagues note , there were , in fact , five persons on the store staff.
185
departments, as with Hartfield's, were grouped to-
gether for administrative reasons, still, when the de-
partment manager for one department was absent,
the department manager for the other department
did not assume supervisory authority over that
department's employees. The departments, with their
low number of employees, may well have gone unsu-
pervised in such situations. Thus, the supervisory ra-
tio relied on by the Administrative Law Judge is sus-
ceptible of more than one interpretation and is not a
substantial factor demonstrating supervisory status
here.
The Administrative Law Judge also noted general-
ly the myriad merchandising duties the department
managers were to perform. He found they called for
the exercise of independent judgment in many re-
spects and, he noted that, while sales personnel might
also do these tasks, it was the department manager
who had responsibility for seeing that the various
merchandising forms were completed.
I note, however, that whatever merchandising du-
ties, including buying, the department managers may
have had, these duties, relating to the use of indepen-
dent authority over goods, are not a substitute for
showing independent authority, or control, over per-
sons. Our statute defines a "supervisor" as an indi-
vidual having authority in various respects over "em-
ployees," not over goods. Thus, this factor is
irrelevant in a discussion of the department manag-
ers' possible supervisory status .4
Next, the Administrative Law Judge credited
Respondent's store manager, Stotts, who indicated,
according to the Administrative Law Judge, that "he
viewed the three as supervisors," and he also credited
another official of Respondent when he stated that
"both Hardeman and Hartfield had total responsibil-
ity for their departments ...." I would simply note
that the Administrative Law Judge here has seeming-
ly credited views and conclusions offered by Respon-
dent. The gist of Respondent's argument, however,
must of course be, based on facts. Further, to the
extent that the Administrative Law Judge relied at all
on Respondent' s self-serving declarations of Watts',
Hartfield's, and Hardeman's status, such declara-
tions are severely undercut by Respondent's failure
to earlier object to these three department ' managers'
inclusion on the eligibility list of the election held
here.
The Administrative Law Judge also generally re-
lied on Respondent's "Retail Store Department
Manager Manual" as an indicator of the three em-
ployees' supervisory status. Respondent held regular
4 The Administrative Law Judge noted this factor generally and also re-
lied on it with particular reference to each of the department managers at
issue As I deem the factor irrelevant, I do'not mention it further with
respect to each of the three department managers.
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Saturday morning meetings for its department man-
agers at which different aspects of the manual were
discussed and at which self-tests based on the manu-
al were given. After excerpting various portions of
the manual in his Decision, the Administrative Law
Judge concluded that the manual was "replete with
provisions" that brought the department managers
"squarely within" the statutory definition of supervi-
sor so that, if the department managers worked in
conformity with the manual, they were supervisors.
Unlike the Administrative Law Judge, I am not
nearly so sanguine about what the provisions of the
department manager manual indicate. Statements in
the manual such as "Supervision is one of your re-
sponsibilities as a Department Manager" indicate
nothing. The test, as the Administrative Law Judge
himself elsewhere noted, is what these three depart-
ment managers did, themselves, in their work. But,
unlike the Administrative Law Judge who then ap-
peared too caught up in various of the manual provi-
sions, I am unwilling to be influenced in my decision
by certain alleged responsibilities Respondent's man-
ual generally gives its department managers unless I
see those "responsibilities" reflected in the actual du-
ties of the employees here at issue.'
In addition to the general characteristics that the
Administrative Law Judge found each of the three
disputed department managers shared, he concluded
that, individually, their duties demonstrated their su-
pervisory status. While I do not agree, I note that the
Administrative Law Judge has set out the facts con-
cerning the status of the three department managers
5 As I believe the actual duties of the employees take precedence over the
provisions noted for them in the manual , I do not discuss the manual provi-
sions at any length I note , in passing , however, that those provisions noted
by the Administrative Law Judge, when read closely, indicate, at best, that
the department managers are to direct and train their employees The ques-
tion then arises, however, whether they are to do so "responsibly ," and only
an analysis of their actual duties will show this Again , statements in the
manual such as "You will be expected to handle petty grievances , settle
disputes, sooth injured feelings . " in fact, signify nothing The relevant
considerations are "how" will this be accomplished and has it been accom-
plished; will management back up the decisions of its department manag-
ers'? The answers are not in the manual and , I submit, on this record, that
power spelled out in certain portions of the manual has not been given the
three department managers.
While it is unclear for how long the department manager manual has
been in existence , it is pertinent to note here Respondent's somewhat check-
ered history of its own view of department managers as seen through van-
ous Board proceedings . Here , Respondent is arguing that all its department
managers are supervisors It also argued in the Board proceeding noted at
198 NLRB 52 (1972) that Department Manager Evangeline Adams, whom
it had discharged , was a supervisor However, in a proceeding at 187 NLRB
956 (1971 ), Respondent's position was that Acting Department Manager
French , who was alleged to have engaged in an 8(a )( 1) interrogation, was an
employee. And in another proceeding at 117 NLRB 1481 ( 1957), Respon-
dent contended that "department head" Franklyn Doak, who had filed a
decertification petition , was an employee Conversely, in a proceeding at 93
NLRB 640 ( 1951), Respondent argued that "department head" Elizabeth
Victor, whom it had discharged , was a supervisor under the Act. Respon-
dent's position on the status of department managers had clearly not been
the hallmark of consistency
in dispute in his Decision. As I do not disagree with
the greater portion of his recitation- of the facts, I do
not intend to restate them here, but rather I set forth
my differing conclusions based on those facts found
by the Administrative Law Judge, as amplified by
other facts I may note here.
With respect to Kenneth Watts, the department
manager in the carpet department, the Administra-
tive Law Judge found-that Watts considered himself
the head of his department; that he exercised inde-
pendent judgment in his merchandising endeavors;
that he was responsible for the overall operation of
his department, including the scheduling of hours of
his employees and their training; that he hired two
employees; that he reprimanded 'an employee; that
he effectively recommended the choice of the carpet
installer most often used by Respondent; that he ap-
praised employees; and that he spent the bulk of his
time in nonselling duties.
The facts of record also yield the following conclu-
sions, however. Watts' work schedules-were subject
to the approval and, on occasion, revision by higher
management; Watts' directional responsibilities were
in part a result of his admitted expertise in carpet
sales and to that extent equate more with a training
function than with one of responsible direction;
while Watts was instrumental in the hire of certain
employees, other of his hiring recommendations were
not followed; Watts at one time wanted to fire an
employee from the carpet department but' higher
management refused the request and the employee
was not fired but instead, as higher management rec-
ommended that an, evaluation reprimanding the em-
ployee be done, Watts submitted such an evaluation;
while Watts did appraisals of employees, these ap-
praisals were on occasion returned to Watts by high-
er management with instructions to revise the esti-
mate on the employee, usually a downward estimate
being sought by management.
With respect to Terry Hartfield, the 'department
manager in the sporting goods department, the Ad-
- ministrative Law Judge concluded that Hartfield
coordinated work schedules with another department
manager for the employees of their departments; was
entirely responsible for his department's profit mar-
gin; directed salesmen in their work and made work
assignments; made decisions calling for independent
judgment in the buying of merchandise; spent 40
percent of his time in nonselling work; hired one em-
ployee; and received a percentage override on sales
made in his department to compensate for his added
responsibilities.
The evidence also allows conclusions, however,
that while Hartfield hired an employee, his recom-
mendations in four or five other cases were not fol-
MONTGOMERY WARD & CO.
lowed.. Moreover, on occasion, employees were hired
into his department without his- ever having inter-
viewed these employees. Hartfield, as Watts, had an
evaluation of an employee returned to him in order
to lower the evaluation.'
With respect to Hazel Hardeman, the department
manager in the drapery department, the Administra-
tive Law Judge concluded in essence that Hardeman
instructed employees in her department on their
work; scheduled employee hours; hired an employ-
ee; evaluated employees in their work; "ran" her de-
partment and was responsible for its meeting its sales
goals; and was told she was a supervisor.
The evidence also establishes, however, that the
work schedules submitted by Hardeman were some-
times changed without her knowledge; that she was
told to reconsider an evaluation she submitted; that
while Hardeman was told by management that she
was a supervisor, an employee in her department,
hired without Hardeman's knowledge, was never told
that Hardeman was her supervisor; that she was the
most experienced employee in the store in draperies;
and that a portion of her directional duties related to
the function of training department employees in the
knowledge of draperies.
From the foregoing, I think it clear to state that,
while the department managers were to schedule
their employees' hours, these schedules were at times
changed without the department managers' approv-
al; that, while the department managers may have on
occasion hired an employee, there were numerous
occasions when their -recommendations in this area
were not accepted by higher personnel and, in Hart-
field's and Hardeman's cases, employees were hired
into their departments without their knowledge; that
no evidence was presented that the department man-
agers ' could fire any employee and, in the one in-
stance when a department manager attempted to do
so, he was rebuffed by higher management;I that De-
partment Managers Watts and Hardeman were the
most experienced employees in their respective areas
and part of their directional functions, it can be in-
ferred, were the result of their expertise and basically
involved training in their specialities. These conclu
sions are hardly the stuff from which supervisory
findings are made.
Nor is the fact that the department managers com-
plete employee evaluations here an indicia of super-
visory authority. In fact, an in-depth view of the
6 This was when Hartfield was department manager of another depart-
ment. He did not have an opportunity to do an evaluation in the sporting
goods department before his discharge
r In October 1974, at the height of the controversy over the department
managers' status, Store Manager Stotts told Harfield he could hire and fire
employees. I simply note the one attempt to fire by a department manager
was rejected outright by higher management.
187
practice of employee evaluations demonstrates how
generally attractive Respondent's supervisory argu-
ment is on the surface but how it falters under close
scrutiny.
Respondent in its brief argues that "[B]y comple-
tion of a Performance Review Sheet, department
managers periodically evaluate the performance of
their salespeople . . . . The manager then discusses
the Review with the employee involved and the form
is signed by both. If the Review is satisfactory, and
represents productive work habits, the employee will
be given wage increases consistent therewith." The
implication is that the appraisal is a supervisory tool
of the department managers. However, it has already
been noted that those appraisals submitted by de-
partment managers have been returned by higher
management for the purpose of reevaluating employ-
ees along the lines suggested by higher management.
I note, further, that these evaluations are not dis-
cussed by the department manager with the evaluat-
ed employee until higher management has seen, and
apparently put its imprimatur on, the appraisal. Fur-
ther, and contrary to the thrust of Respondent's ar-
gument, the appraisal's purpose is not to grant wage
increases. According to the store's former operating
manager, David Douglas, who was generally credited
by the Administrative Law Judge, there is "no con-
nection" specifically between an appraisal and a
wage increase. The purpose according to the testimo-
ny of Douglas is to "review"the employee's perfor-
mance." This review which apparently must first be
approved by higher management is, I conclude, ef-
fectively supervised by higher management with the
department manager only the conduit of higher
management's views of the-employee.8
The Administrative Law Judge, however, found
that each of the three department managers also was
charged by Respondent with running his or her de-
partment and insuring the employees were engaged
in productive work. It is apparently correct that the
three department managers were charged with seeing
that their respective employees were occupied at
work. In fact, Hartfield was chastised for not fulfill-
ing this function regarding employee Skidmore, and
two of the department managers, Watts and Harde-
man, considered themselves the bosses of their re-
spective departments. In most circumstances, this
factor of presumably being held accountable, or "re-
sponsible," for one's department is a fairly. substan-
tial predicate for a finding that the person who is
allegedly "responsible" is a supervisor under the Act.
But in the particular circumstances of this case, I
B I note with interest that on certain of the employee appraisals submitted
into evidence the section designated "Suggestions for Improvement" has
apparently been filled out by someone other than the reviewing department
manager -
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cannot equate this alleged "responsibility" with the
concept of responsible direction under the Act. For,
if one is truly endowed with the power of responsible
direction, then, when one wishes to evaluate an em-
ployee, or reprimand an employee, one's authority
would not be so circumscribed as was the depart-
ment managers' herein, so that the above facts, when
accomplished, were more correctly designated as
sporadic occurrences rather than as examples of the
supervisory authority delegated each department
manager.
I am well aware that if Watts, or Hartfield, or
Hardeman can be said to have possessed any one of
the indicia noted at Section 2(11) of the Act, I would
be bound to find them supervisors under the Act. I
find, however, that I cannot so conclude here. Rath-
er, I think Respondent has cloaked these three with
(1) a large degree of merchandising responsibilities,
which I do not find to indicate supervisory status;
and (2) an illusory authority which, at surface value,
may tend toward a supervisory finding but which un-
der close scrutiny cannot withstand a finding that the
three were employees.
At this time, I return to a few facts, with additions,
that I noted at the outset of this opinion. Respondent
included these department managers on an Excelsior
list and allowed them to vote without objection in an
election held on April 11, 1974. Notwithstanding
this, Store Manager Stotts, according to his testimo-
ny, clearly considered department managers to be su-
pervisors under the Act and indicated this was sim-
ply company policy to so consider them. At the time
of the election, however, Store Manager Stotts had
been at the Fort Collins store for about 5-1/2-weeks,
yet no challenge was made to the eligibility of the
department managers.9 Worthy of note also is the
time Respondent first contended its department
managers were supervisors. This occurred on July 9,
1974, at the initial unfair labor practice hearing in
this proceeding, when it was alleged that Respondent
had violated Section 8(a)(3) and (1) of the Act with
respect to Department Manager George Rosencrans
and Section 8(a)(1) of the Act with respect to, at the
least, Department Manager Watts. General Counsel
9 Respondent recounts that before Stotts arrived in early March 1974 the
prior store staff had assumed the duties of hiring and firing and had pre-
cluded the department managers from performing these and other supervi-
sory tasks. Stotts, according to Respondent's brief, "promptly began to
bring the store into compliance with prescribed corporate policies and pro-
cedures ." (But see fn . 10 for another . version of Respondent 's corporate
policies and procedure 's as viewed through the prism of its own actions,
arguments , and contentions in unfair labor practice cases ) This supposedly
included the Saturday morning training sessions by which Respondent, ac-
cording to its brief , wished to "retrain the managers and to instill in them
accountability and responsibility in their jobs." Again, while Respondent
was doing all this, it let these "supervisors" vote in the April election.
was so unprepared for Respondent's contention at
the hearing that these department managers were su-
pervisors that a continuance was granted to allow
General Counsel to prepare to meet Respondent's ar-
gument. I am well aware of precedent, which I sup-
port, which permits relitigation in an unrelated com-
plaint case of supervisory issues decided in a prior
representation proceeding. My recitation of the
above facts is not to attack that procedure. Rather, I
wish simply to demonstrate when it was apparently
that Respondent first contended here that depart-
ment managers were supervisors; i.e., when it was
first charged with a violation of the Act.10
Based upon all the foregoing evidence in the in-
stant case and the interesting history of the "depart-
ment manager" at Montgomery Ward noted at foot-
notes 5 and 10, supra, I am constrained to find that
the department managers here are employees under
the Act. I am tempted to consider their status at
Montgomery Ward as akin to that of an accordion,
i.e., Respondent can press in, note a few facts, and
develop a theory that department managers are em-
ployees; or, it can expand certain duties, add a few
flashes of apparent authority, and result in a conten-
tion that department managers are supervisors. In
this case, however, I find the department managers'
duties have not been made expansive enough by Re-
spondent; that the three in question are employees;
and that, accordingly, the evidence supports a find-
ing that those various complaint allegations I noted
at the outset of this opinion, which the Administra-
tive Law Judge dismissed, have, in fact, been estab-
lished as violations within the meaning of the Act,
and I would so find.
101 note the following as facts also : if Respondent 's contention is af-
firmed here , the department managers are supervisors and their discharges
were protected , but if they are employees, then their discharges were clearly
unprotected. In prior cases involving Respondent and the issue of depart-
ment managers (see also In . 5, supra), I note the following results: in 198
NLRB 52, if Respondent' s contention re Adams held up, she was a supervi-
sor and her discharge protected, in 187 NLRB 956, if Respondent 's conten-
tion re French held up, he was an employee and could not have engaged in
an 8(a)(1) interrogation as alleged ; in 117 NLRB 1481, if Respondent's
contention held up re Doak, he was an employee and his decertification
petition was valid; and in 93 NLRB 640, if Respondent's contention held up
re Victor, she was a supervisor and her discharge was no violation of the
Act
Thus, Respondent's checkered history on its department managers ' status
nevertheless yields a consistency, i e., if Respondent's contentions are up-
held, Respondent never violates the Act regardless of what its department
managers do or is done to them by Respondent.
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge: This
matter was heard at Fort Collins, Colorado, on various
dates between July 9, 1974, and November 13, 1975. The
MONTGOMERY WARD & CO.
original complaint in Case 27-CA-4091, issued on May 9,
1974,' was based upon an original charge filed April 1 by
Retail Clerks Union Local No. 7, chartered by Retail
Clerks International Association, AFL-CIO, hereinafter
referred to as the Union. The complaint alleged that Mont-
gomery Ward & Co., Incorporated, hereinafter referred to
as Respondent, violated Section 8(a)(1) of the National La-
bor Relations Act, as amended, hereinafter referred to as
the Act: The original charge in Case 27-CA--4124 was filed
by the Union on May 7. On June 10 the Regional Director
of the National Labor Relations Board (Board) filed an
order consolidating said two cases and filed an amended
consolidated complaint 2 alleging that Respondent violated
Section 8(a)(1) and (3) of the Act. On September 12 said
Regional Director approved a settlement agreement in the
aforesaid two cases. The original charge in Case 27-CA-
4305 was filed by the Union on October 23. On December
24 said Regional Director filed an order consolidating the
three cases named above and filed an amended consolidat-
ed complaint (herein called complaint) stating that the set-
tlement agreement was set aside because Respondent vio-
lated Section 8(a)(1) and (3) of the Act after entering into
said agreement, and alleging that Respondent violated Sec-
tion 8(a)(1),(3), and (5) of the Act.
All parties were-given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel and Respondent.
Upon the entire record of the case, and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is now, and at all times material herein has
been, a corporation duly organized and existing under and
by virtue of the laws of the State of Illinois, with an office
and place of business at Fort Collins, Colorado, engaging
in the retail department store business. In the course and
conduct of its business operations at the Fort Collins store,
Respondent annually does a gross volume of business ex-
ceeding $500,000,in value, and purchases and receives di-
rectly from outside the State of Colorado goods and mate-
rials valued in excess of $50,000. I find that- Respondent is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks Union Local No. 7, chartered by Retail
Clerks International Association, AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
i All dates herein are within 1974 unless stated to be otherwise.
2 Amended at hearing to add an 8(a)(1) allegation concerning Douglas
Muir, alleged to be a supervisor
III. THE ALLEGED UNFAIR LABOR PRACTICES
189
A. The Background
Respondent has maintained a store at Fort Collins for
several years. The manager at times relevant herein is, and
has been , Charles Stotts, who began work as store manager
March 4 , 1974. Stotts was told by his supervisors before he
was made manager at Fort Collins that the store should be
doing much better than it was doing , and he was exhorted
to improve sales and profits. At that time total employment
at the Fort Collins store was about 100 to 115, and there
were 16 to 20 department managers .' The store staff at
times relevant herein consisted of Lawrence Lewis, who
was store merchandiser prior to June 1974 , line merchan-
diser from June 1974 to November 1974, and operating
manager from November 1974 to the present; David
Douglas , who was operating manager from May 1971 to
October 1974 ; and Bea Jorgenson , who was personnel as-
sistant prior to September 1974 and personnel
assistant/CAC manager (customer accommodation center)
since September 1974. Douglas Muir is regional employee
relations manager, with an office in Kansas City, Missouri.
Muir participated in some of Respondent's negotiations
with the Union . Muir's supervisor is a Mr. Scheidt; who is
corporate vice president in charge of labor and employee
relations , with an office at company headquarters in Chica-
go, Illinois.
General Counsel alleges that Respondent committed
several ' 8(a)(1) violations , but the principal controversy in-
volves four department managers. General Counsel con-
tends that Respondent discharged three of the four, and
required resignation of the fourth earlier than he voluntari-
ly would have left, because of their union or other protect-
ed activities . General Counsel also, contends that, in refus-
ing to negotiate with the Union because three of said four
employees were involved as negotiators , Respondent vio-
lated Section 8(a)(5) of the Act. Respondent argues that the
four were supervisors , that the employee who resigned was
permitted to leave promptly after resignation in accor-
dance with company practice, that it refused to negotiate
with the Union only because the three dischargees were
supervisors at the time of the negotiations , and that the
three were on the Union 's negotiating committee , thus giv-
ing Respondent cause to refuse to negotiate until the three
left the room . Respondent further contends that the 8(a)(1)
allegations involving supervisors - are without validity be-
cause of supervisorial status.
The four employees alleged by Respondent to be super-
visors are Kenneth Watts, Terry Hartfield, George Rosen-
crans, and Hazel Hardeman (all are referred to herein by
their last names). All four were active union supporters and
openly displayed that support by wearing union insignia.
The Union filed a petition for election, which was held on
April 11 . The Union won the election, and a brief prelimi-
nary meeting was held on August 26 at the union office.
The only business transacted on August 26 was the presen-
tation of written union proposals to Muir by Dan Thorne 4
3 Five or six had nonsellmg departments.
4 Sometimes spelled Thorn
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hartfield and Lois Miller, one of -Respondent's employees,
were present at the time. The first bargaining session was
held on October 16. Present at the meeting were a Mr.
Rafsky and Dan Thorne representing the Union; Stotts,
Muir, Scheidt, and Douglas representing Respondent; and
Frank Austin, Hardeman, Hartfield, and Watts repre-
senting the employees.5 Respondent announced at the
meeting that it would not bargain so long as department
managers were present, since Respondent considered them
to be supervisors. At the department managers' weekly
meeting the following Saturday, October 19, Stotts read
from a prepared document Respondent's position that de-
partment managers are supervisors, and Stotts informed
those 'present that department managers would not be al-
lowed to participate in the union activities. The three dis-
chargees involved herein were discharged November 3 and
4 for continuing to wear union buttons while at work.
B. The Question of Supervisorial Status
Respondent's Exhibit 2 is a voluminous document enti-
tled "Retail Store Department Manager Manual" (manu-
al), which has been in effect for some time and which was
in effect at all times relevant herein. The manual is divided
into 11 sections, as follows: "(1) Department Manager's
Job; (2) Merchandising; (3) Merchandise Mathematics; (4)
Operating; (5) Selling; (6) Sales Promotion and Advertis-
ing; (7) Display; (8) Personnel and Training; (9) Manage-
ment; (10) Glossary; and (11) Self Tests." Each depart-
ment manager has one of the manuals, or has immediate
access thereto, in his department.
Since approximately the date of Stotts' arrival at the
Fort Collins store on March 4, 1974, Stotts has met with all
the department managers each Saturday morning. The
purpose of the, meetings are to train and inform depart-
ment managers. Respondent's principal teaching tool for
department managers is the manual, and weekly training
sessions are held based upon the manual 6 All department
managers are required to take the self-tests contained in
section I1 of the manual,' many of which were covered
during the Saturday morning meetings from May to No-
vember 1974.
Included among the many statements in the manual are
the following:
Merchandising, operating, selling, and personnel
handling for your own department are your responsi-
bility plus one more very important area of responsi-
bility-customer service. [sec. 1, p. 3]
In a friendly way he must be able to lead rather
than drive his salespeople and all who are under his
jurisdiction. [sec. 1, p. 6]
5 Employee representatives were elected to that position by the employ-
ees
6 Department managers are provided with much other training material
See, for example, Resp. Exh 16.
Department managers also are required to take a yearly test given on a
national basis (Resp Exh. 17). Lewis credibly testified that Watts and
Hardeman took the test, but he is not sure about Hartfield because the latter
was department manager of a nonselling department when the last test was
given The test includes material on supervisory functions of department
managers
Frequently, he must use judgment _on merchan-
dise-he must use his own aesthetic taste, his sense of
style, and his own appreciation of merchandise to
reach a decision. [sec. 1, p. 6]
The Department Manager, of course, is responsible
for his own personnel but the store staff has the re-
sponsibility of providing a carefully selected,, well
trained, properly supervised nonselling staff that is
competent and loyal to the company and to their fel-
low workers. [sec. 1, p._7]
If your department shows an extreme variance from
the national average, you should determine if -there is
a legitimate reason or if,you were lax in some of your
merchandising responsibilities. [sec. -2, p. 9], -
You will be wise to make good use of the Corporate
Office and Regional Office guidance when budgeting
your department's sales. Iw addition to this guidance,
you will need to consider the following factors in de-
veloping your budgets:
Personnel . . . What is your ability to get'the poten-
tial sales from your department? Can you get sup-
port of store management for your fair share of
sales promotion, advertising, and display, eeds? Do
you have the ability to train an effective sales force
to develop the maximum sales potential? Appraise
your ability as a manager of people and merchan-
dise. [sec. 2', p. 13]
Whenever your department is overbought, you must
make a careful analysis of each line of merchandise to
determine where your merchandising problems are.
[sec. 2, p. 17]
In your department you must decide how much
merchandise you can profitably order with the
amount of money you have to spend. [sec. 2, p. 18]
A knowledge of Merchandise Mathematics will en-
able you to use 'good judgment in making decisions
that affect your department. [sec. 3, p. 3]
You must- impress on your salespeople not to steer
away from and avoid customers bringing merchandise
back for refund-or exchange. [sec. 4, p. 46]
Through skillful training of the "TEN POINTS OF PROFES-
SIONAL SELLING" in your department; you can develop a
truly professional salesperson from a totally inexperi-
enced order taker. All that is required is effective
training, enthusiastic leadership, consistent follow-
through and a good example set by you as a Depart-
ment Manager. [sec. 5, p. 6]
Ask yourself how your ordering, advertising, and
display can be improved; how you can use salespeople
more effectively. Ask your selling staff for criticisms
and suggestions. [sec. 6, p. 11]
Temporary and part-time people should make up at
least 50% of your organization. Therefore, you.must
carefully analyze your department's needs for these
two categories of sales personnel. [sec. 8, p. 4]
The training manual "How to Recruit, Hire, and
Train for Peak Periods" TR 209 contains some very
helpful tips particularly in the hiring of temporary and
part-time employees. [sec. 8, p. 4] -
Since the performance of your department is depen-
MONTGOMERY WARD & CO. 191
dent upon the combined competence, knowledge and
skill of your entire organization, training of your peo-
ple is one of your most important responsibilities. [sec.
8, p. 5]
Coaching is a never-ending process which the De-
partment Manager must start immediately after he has
given his employees their formal instructions. [ sec. 8,
p. 10]
The Department Manager is to conduct a perfor-
mance review of each salesperson in his department
according, to the following schedule: [sec. 8, p. 11]
Supervision is one of your responsibilities as a De-
partment Manager. [sec. 9, p. 19]
As a supervisor, you must understand the principles
of human relations. You not only direct the work of
others, you also solve problems, coach and counsel,
motivate, set standards, appraise performance, and
maintain good human relations among your people.
You will not be expected to get a perfect score in all
these areas; no one will. You will, however, be expect-
ed to constantly improve the quality of your personal
leadership. [sec. 9, p. 20]
You will be expected to handle petty grievances, set-
tle disputes, soothe injured feelings, correct stubborn
behavior, settle basic personality conflicts, schedule
work, meet -tough deadlines, revive faltering enthusi-
asm, and handle a variety of daily emergencies. Al-
most all of these problems require the skill of handling
PEOPLE Solving these human type problems, therefore,
can be a real test of your character, experience, and
leadership. [sec. 9, p. 22]
As Department Manager, you are responsible not
only for, supervising other employees, but for perform-
ing merchandising, operating and selling functions
yourself. You must have a thorough knowledge of
markups, markdowns, figuring needs, insight bud-
geting, potential overstock and problem merchandise,
Maintained gross profit, display, advertising, payroll
expense, promotional planning, training and selling
'techniques. [sec. 9, p. 24]
In short, the Department Manager who saves time
by delegating, takes time to communicate exactly
what he expects and continually trains his salespeople
to make sure that what they do will need a minimum
of review before approval. [sec. 9, p. 29]
Section 2(11) of the Act defines a supervisor as follows:
It is clear, and found , that if the department managers
herein worked in substantial conformity with the manual,
they would be supervisors as that term is defined in the
Act.
However, the wording of the manual does not necessari-
ly, in and of itself, resolve the controversy . A controlling
factor is the work actually performed by department man-
agers.8 It is necessary , therefore , to review the facts that
were established with certainty relative to the jobs of each
department manager involved herein.
1. Kenneth Watts
Watts was an employee of Respondent for more than 5
years and was manager of the carpet department more
than 4 years. For about 6 or 8 months after he took over
the department he worked alone; thereafter he had two
full-time employees.
Watts testified that, during the time relevant herein, his
work included the following: selling, overseeing contracts,
looking over those that sell in the department, making sure
that goods are ordered,9 ordering goods for individual car-
pet orders, counting basic books each month, taking mer-
chandise markups and markdowns, making out work
schedules,10 initially approving changes in work schedules,
in some instances interviewing prospective employees,"
recommending on two occasions that employees be trans-
ferred or terminated,12 reprimanding one employee at the
direction of management after Watts initiated a request for
the employee's termination,. making yearly work evalua-
tions of employees in his department,'3 referring requests
for days off to the operating manager after employees
make initial requests to Watts,14 attending weekly depart-
ment manager meetings, choosing the installer for individ-
ual contracts,15 maintaining inventory control,16 approving
installation contracts, and having responsibility for floor
coverage by salesmen.
Watts testified that-"I try to see that my employees cover.
my floor is covered at all times .. _ .. " Relative to the
two salesmen in his department, he said "I have the re-
sponsibility to see to it that they conform to the work
schedule set up . . .; "I may ask them [note: the sales-
men] to help kind of straighten the department up or I may
ask them to get things out of the back room ..."; "Yes,
when we have training material, why I see to it that they
get the training material, and help them any way I possibly
can from experience." He further testified:
The term "supervisor" means any individual having
authority, in the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances,
or effectively to recommend such action, if in connec-
tion with the foregoing the exercise of such authority
is not of a merely routine or clerical nature, but re-
quires the use of independent judgment.
The manual is replete with provisions, some of which are
quoted above, that bring Respondent's department manag-
ers squarely within the statutory definition of "supervisor."
B Montgomery Ward & Co, Incorporated, 198 NLRB 52 (1972), Harlem
River Consumers Cooperative, Inc, 191 NLRB 314 (1971)
9 Subject to change by the staff
10 Ir1
1 Watts' recommendations for hire sometimes were followed and some-
times were not followed (about 50/50)
12 Disapproved by the staff
13 Management made a change on one evaluation Watts said he made
from four to seven appraisals while he was a department manager
14 Watts sometimes makes recommendations to the operating manager
relative to such requests
15 From among three under contract with Respondent The basic con-
tracts establish prices to be charged on individual contracts
16 Subject to change by the merchandise manager
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. No. Do you try and encourage them and set cer-
tain goals for them in sales?
A. Well, I think that I try to help show them how to
get into the home . In the carpeting business the sales
are great big sometimes or little small sometimes, and
you may have a run in there for three or four days
when you have maybe fifty dollars worth of sales in a
day's time , or maybe you may have two or three days
where you hit sales for fifteen hundred, two thousand,
twenty-five hundred . So I try to get a definite amount
per quarter , not a definite amount per day.
Q. But part of your job as a department manager is
to improve the sales in the carpet area, isn't that cor-
rect?
A. I would think it was the responsibility of all the
employees to improve their sales.
Q. Yes, to improve them , right?
A. Right.
Q. And as such , the two salesmen in your depart-
ment have that responsibility , isn't that correct?
A. That's right.
Q. And you are responsible for them , isn't that also
correct?
A. I'm responsible for the acts that they do, that's
correct.
Q. And you train them and assign them work and
try to encourage them to increase their sales , isn't that
correct?
A. That's right.
Watts testified that he has authority to make refunds and
to approve local checks up to $ 100, and that it is the prac-
tice for the salesmen in his department to come to him for
such approvals.
Watts said he talked with one of his salesmen , Paul Bell,
before Bell was hired , and that he submitted a regular work
appraisal on Bell . The approval was sent to the operating
manager, who made some changes and returned it to
Watts. Watts then discussed the appraisal with Bell and
pointed out his shortcomings and areas ' of his work that
needed to be improved.
Watts was sent twice each year to marketing meetings
held in Kansas City and Denver . He was on a salary basis
and was paid, in addition to his salary , an override of 1
percent on all sales made in the department regardless of
who made the sales. Salesmen and Watts work 40-hour
weeks and punch timeclocks . Watts' salary was $120 per
week , and his override averaged about $80 to $150 per
month.
On one occasion (G.C. Exh. 10) Stotts criticized Watts
because the latter 's selling cost was too high . Watts ex-
plained to Stotts that the reason was Watts' responsibility
to do much work in the department other than selling.
Stotts then agreed to increase Watts' selling cost allowance
to 20 percent, as opposed to a rate of 6 to 9 percent for
commission salesmen . Watts acknowledged that , as of the
date of the incident (for 4 months ending May 1974), he
was spending 83.9 percent of his time at jobs other than
selling. Those jobs included approval of installation con-
tracts, ordering carpets for sales made by salesmen , stock-
ing the department , counting basics , and cutting carpets.
Discussion
It is noted at the outset that, during the period of time
relevant herein , Respondent had a store staff of four, in-
cluding the store manager, operating manager , merchan-
dise manager, and personnel assistant . There was a total of
100-to 115 employees, including 16 to 20 department man-
agers, of which 5 or 6 were managers of nonselling depart-
ments. It is further noted that no department discussed by
witnesses during the hearing herein was without a manag-
er, although there were instances wherein two or three con-
tiguous departments were placed under one manager, or
some work was consolidated for administrative efficiency.
In those instances work schedules were arranged in such
manner that a manager always was available on the floor.
The evidence shows that, when such arrangements were
made, the individual departments retained their autonomy
and no department manager thereby became a supervisor
of another department manager -or of the employees of an-
other department.
It is quite clear from the record that the store staff of 4
persons could not, acting alone, effectively administer ap-
proximately 100 to 115 employees engaged in this complex,
busy retail establishment : That ratio of supervisors to em-
ployees clearly would be outside the realm of realism and
business requirements .17 It was essential that some person
in authority be available at all times ` t̀o act as a conduit
between Respondent and the public for such purposes as
floor coverage , approval of checks and refunds , provision
of merchandise, supervision of customer complaints, and a
host of other tasks. That conduit is the department manag-
er. If no such position existed , the salespeople would oper-
ate without effective supervision, since the staff necessarily
limits itself for the most part to the overall operation of the
store. By the same token , department managers are effec-
tive only if authority is delegated to them, including au-
thority to direct the work of salespeople . The fact that the
department managers involved herein were responsible for
relatively small departments , with only a few employees in
such departments , is immaterial 18 if, as a matter of fact,
the department managers supervised those employees and
if, without such supervision, the employees would have no
supervisor . Such is the case, as shown by the testimony of
the dischargees themselves . There is nothing in, the record
to show that the work of department managers of small
departments was under the supervision of, or treated dif-
ferently from, the work of managers of larger departments.
Much testimony was taken , and much argument devoted
to, the requirements of Watts for maintaining gross profit,
ordering merchandise , counting basics, taking inventory,
checking advertising, and other clerical duties. General
Counsel and' his witnesses point to these chores as simple
tasks that any salesman can, and sometimes does, perform.
Respondent , on the other hand, contends that the tasks are
not simple, and that they require substantial exercise of
independent judgment . Although the record is somewhat
confusing because of the detail involved in these tasks,
17 Bel-Air Mart, Inc, 203 NLRB 339 (1973), Pennsylvania Truck Lines,
Inc, 199 NLRB 641 (1972)
18 Henriksen, d/b/a Gibson Discount Center, 191 NLRB 622 (1971).
MONTGOMERY WARD & CO. 193
some things are clear. First, they are far from simple. They
are explained at great length in the manual, and in supple-
mental training material frequently given to department
managers . Second, the tasks are the subject of regular
training sessions, with tests, and are discussed in one form
or another each Saturday at department managers' meet-
ings conducted by the store manager.i9 Third, although
some salesmen occasionally do participate in some of the
tasks, it is clear from all the testimony that department
managers , and they alone, are responsible for performing
the tasks or seeing that they are done. The fact that, in
some instances, the completed documents are reviewed
and initialed by a member of the staff is immaterial, since
such review is after the fact and only occasionally results in
any change. Finally, General Counsel's position partially is
based upon the extent to which these clerical functions
have been reduced to their simplest form. The argument is
that such reduction has eliminated all independent judg-
ment, resulting in department managers (Watts) becoming
clerks who merely complete forms in simple, mechanistic
manner. However, that argument ignores two basic facts.
(a) Independent judgment still must be exercised in several
ways. Undisputed evidence and Watts' testimony show
that, for example, Watts assessed customer requirements
on particular orders and selected an installer from among
three that were available;20 he determined which goods
were to be sold at reduced prices or otherwise disposed of;
he independently determined when goods were to be or-
dered and in what amounts. Commission salesmen were
given their allowances based solely upon Watts' authoriza-
tion. Watts alone authorized payments to salesmen by ap-
proving the outside call sheet. Watts independently adjust-
ed customer complaints and authorized customer refunds
for defective merchandise. (b) Regardless of the details in-
volved in preparing the reports and forms involved in his
daily work, Watts still, by his own acknowledgment, was
the person ultimately responsible for seeing that they were
prepared promptly and properly, and given to the staff as
required. He also acknowledged that only he in the depart-
ment'was authorized to sign the reports and forms and turn
them in to the office. The fact that Respondent has at-
tempted to simplify the clerical requirements of depart-
ment managers does not require a finding that Respondent
thereby intended to, and did, reduce department managers
to minor clerical employees who cannot be classified as
supervisors 21
19
Attendance at such meetings is one indication of supervisory status
Yankee Department Stores, Inc., a Subsidiary of Hartfield-Zodys, Inc., d/b/a
Zodys, Elkart, Indiana, 211 NLRB 306 (1974); Bedford Discounters, Inc, 204
NLRB 509 (1972).
20 Watts' deep involvement in the installation contracts with outside firms
is well recorded Watts testified that he took Larry Vanderheiden (Van's
Floor Covering) to management for the purpose of introduction as a possi-
ble contractor (after Watts had already been using Vanderheiden on his
own initiative). Vanderheiden was engaged by Respondent and became its
principal installer. Prices were established by the basic contract, but Watts
alone approved frequent changes based upon customer requirements . Sales-
men initially wrote installation contracts, but Watts approved all of them,
and frequently changed them Watts' approval of installation invoices trig-
gered payment to the installer. Watts accompanied salesmen to customers'
homes and businesses , trained them in customer relations and installation,
and instructed them in the preparation of installation contracts.
Stotts testified that he views Watts and the other depart-
ment managers as supervisors. Of even greater weight is the
manner in which Watts views himself. He made frequent
references in his testimony to "my employees," "my com-
missioned salesmen," "my department," "my payroll," and
the like. He left no doubt that he considered himself the
"boss" of the department.
Lewis also testified at length concerning Watts' duties
and responsibilities. Lewis was a credible, conservative wit-
ness. He testified as to Watts' frequent exercise of indepen-
dent judgment in making buying decisions, deciding which
merchandise should be cleared from his department, de-
termining the merchandise to be promoted, displaying
merchandise, and deciding upon what merchandise to buy
while on trips to Kansas City and Denver.
There were two commission salesmen in the carpet de-
partment at times relevant herem (Bell and Kepford).
Watts acknowledged that he was responsible for operation
of the department; for maintaining an acceptable profit
margin for the department; for maintaining an acceptable
(12-1/2 percent) profit on installation contracts; for sched-
uling hours in such manner that the floor would be cov-
ered at all times; for seeing that his salesmen properly were
trained;22 that he had authority to veto salesmen's selec-
tions of installers; and that "it was up to me to see that it
was installed in the proper manner."
Watts testified that he never hired or fired any employ-
ee,23 but he testified to an active and effective part in the
hiring of Kepford and Bell. 4 He said he never disciplined
any employee, but the record shows that he reprimanded
Kepford and attempted, albeit without success, to have
Kepford transferred or discharged. Watts denigrated his
authority relative to installation contracts, but the record
shows he regularly approved them after their preparation
by salesmen,25 and it also shows his effective recommenda-
tion of Van's Floor Covering as' an installation contrac-
tor.26
Watts testified that he prepared employee work apprais-
21 The general statements in the first three paragraphs hereof apply equal-
ly to the discussions below concerning Hardeman, Hartfield , and Rosen-
crans.
22 Watts testified
A. I have went out and give him that training, I have also sent peo-
ple with the other salesmen within the department for that training
also.
Q If they had prior experience and knew the ropes?
A. Yes, sir.
Q But it was you who was primarily responsible to see that your
men were trained?
A. It was.
Such responsibility is an indication of supervisorial status. Delchamps, Inc,
210 NLRB 179 (1974).
23 Authority to hire and fire is not a requisite element of supervisory
status Angeli's Super Valu, 197 NLRB 85 (1972)
24 Lewis credibly testified that Watts alone made the decision to hire Greg
Seaton for the carpet department as a replacement for Kepford , after Sea-
ton was laid off from the sporting goods department.
25 Lewis' initials on several installation folders were placed there after
execution of the contracts and for purposes not related to this controversy.
Watts' authority to approve these contracts was rescinded on a date uncer-
tain, but apparently in August . Since Watts was ill and off work 8 weeks in
August, September, and October, it is inferred that rescission of this author-
ity was related to Watts' illness,
26 In the year 1974 Van's Floor Covering was used by Respondent more
than any other installation contractor
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
als on four to seven occasions. Bell-'s appraisal (Resp. Exh.
25) includes "suggestions for improvement" on the reverse
side thereof, which Watts testified were not written by him.
However, Watts acknowledged his signature on the ap-
praisal.
Finally, Watts' agreement that, as of May 1974, 83.9 per-
cent of his time was spent in nonselling activities is of con-
siderable weight. In view of Watts' acknowledged adminis-
trative duties and responsibilities, it is apparent that he
spent most of his time at jobs other than selling. He agreed
that he was responsible for floor coverage, all the paper-
work of the department, approval of all installation con-
tracts, "looking over those that sell in the department,"
"making sure that goods are ordered," training employ-
ees,27 preparing employee work appraisals, and other activ-
ities. Obviously, much of Watts' nonselling work was of a
supervisorial nature.
Based upon the foregoing, it is clear, and found, that
Watts was a supervisory employee at all times relevant
herein, and therefore was outside the provisions of the
Act 2s
2. Hazel Hardeman
Hardeman first was employed by Respondent in 1963.
From prior to April 1974 until August 1974 she was man-
ager of the drapery department. After August 1974 she was
manager of the (combined) drapery and linen department.
During the time relevant herein, three part-time employees
were in the combined department (hereinafter referred to
as department). They were Terry Stumf, Deedee Rem, and
Elaine Schmicht. In addition, Twilla Johnson was hired in
September as a full-time decorator. Stumf worked 28 to 32
hours per week, Rem 15 hours, Schmicht 24 to 28 hours,
and Johnson 40 hours.
Hardeman testified that her duties were "to help with the
basics, keep the department straightened, put out new mer-
chandise, count the basics," and sell. She said she sold
about 85 percent of her time and that the employees did all
the same things she did. Hardeman made a studious, and
obvious, attempt to avoid saying that she had any responsi-
bility for her department, or did any work of more than a
very minor clerical nature or selling. However, her testimo-
ny, particularly on cross-examination, showed otherwise.
Included in her statements were the following: "worked
with her [Johnson] as much as possible" while Johnson was
being trained. Half the time Stumf was in the department,
Hardeman "was helping her." She made up the work
schedules for employees in the department.29 She made
work appraisals of Schmicht and Rem 3° She regularly at-
27 Watts alone was qualified to train salesmen in the regular work of the
department and in installation of carpets No one else in the store was so
qualified.
28
David-Anna Corporation d/b/a Snyder Bros Sun-Ray Drug, 208 NLRB
628 (1974); Abitibi Corporation, 198 NLRB 1249 (1972), John H Scheidel,
193 NLRB 489 (1971), Peoples Service Drug Stores, Inc v NLRB, 375
F.2d 551 (C.A. 6, 1967); Gerbes Super Market, Inc, 213 NLRB 803 (1974).
29 Occasionally changed by the operating manager , sometimes without
discussing the change with Hardeman.
30 Hardeman said the signature on Resp Exh 26 is not hers , although she
said she did make an appraisal of Schmrcht Hardeman said Douglas told
her to redo Schmrcht s appraisal but she refused to redo it . Hardeman said
Rem was a student , and after she made out Rem's appraisal , she "went over
tended the Saturday morning department managers' meet-
ings. When the linen department was added to Hardeman's
responsibilities in August, she was told by Stotts "I am
making you supervisor over linens." She attended approxi-
mately 39 training sessions for department managers, the
sessions being based upon the manual 31 She testified: As a
department manager, she was responsible for achieving a
certain measure of sales and profits; she was responsible
for maintained gross profit and for markups and mark-
downs; she was responsible for, and initiated, markdowns
or sales to move old or defective merchandise; she was
trained in computation of maintained gross profit because
she ran the department; she had girls in the department
who worked for her; she had responsibility for the girls
"To see that they kept up with the daily chores, basics,
housekeeping , taking care of the customers , making sales,
et cetera." "Department managers are supposed to main-
tain the gross profit and keep up with the work that is
assigned. And to see that the girls also do the same thing.
We do it together." She said she knew more than anyone
else in the store about draperies, and Stotts and Lewis re-
lied on her. She said: she trained Johnson in decorating;32
when she was out of the store, she left notes in the depart-
ment instructing the girls in the work they were to do; she
gave oral instructions to the girls in her department; and
when girls had grievances or complaints they came to her
first, then Hardeman sent them to the office. "[W]hen I
first started as department manager, they told me I would
get one percent and that would be like as my bonus for
counting basics. You know, doing all of this necessary
work that had to be done in the department, as being a
department manager." Her override of 1 percent totaled
about $100 to $150 per month.
Catherine Willard testified that she was a salesgirl in
Hardeman's drapery and linen department from October
1973 until August 1974. Her testimony is credited. She tes-
tified that she did not talk with Hardeman before being
hired, that frequently she was alone on the floor, that she
advised only Douglas when she was ill and unable to come
to work, and that she never was told that Hardeman was
her supervisor. She further testified that she secretly went
it" with Rem and her teacher "so that the teacher would know how she
[Rem] was progressing "
31 When first asked about such training, Hardeman strongly denied she
ever received any lessons She changed her testimony after being confronted
with her signed attendance slips, Resp Exh 30A-LL.
32 Lewis credibly testified
Q Mr Lewis , what responsibilities , if any, did Hazel Hardeman
have in the training of the people that worked in her department?
A. Well, I would have to answer that question in the same respect as
Ken Watts . Again, Hazel was the only expert in drapery in the store
Therefore, in order to sell drapes in the drapery department, I would
assume she would have to show them. Just because I wasn't there and
watched her show them-she was the only drapery person in the Fort
Collins store As a matter of fact, she was the only person in the Fort
Collins store who knew anything about selling draperies . So, her re-
sponsibility in training would be to train her people 100 percent in the
merchandise content in the draperies department . Draperies is quite
different and it wouldn't take as much training in the bedding depart-
ment. It is more of product knowledge , where to find things, that type
of thing Draperies is quite different as far as a technical aspect.
Lewis also testified that custom order business constituted about 25 percent
of the total drapery business in 1974 and that it was Hardeman 's responsi-
bility to order those custom draperies
MONTGOMERY WARD & CO. 195
to Douglas on several occasions to ask for transfer from
Hardeman's department because she thought she was
being treated inequitably by Hardeman in the assignment
of hours of work. She said "The main discrepancy with
Hazel [Hardeman] and I was the fact that hours were con-
flicting. I was getting to the point where I was working all
of the week nights, all of the Saturdays and Sundays in-
cluded for nine months straight and it was very tiring for
me." She testified that the salesgirls sometimes switched
hours of work "with Hazel's consent." Concerning her day-'
to-day work, Willard stated:
A. Hazel was worried about if we wrote a ticket, the
accuracy with regard to a large order of draperies,
when it was written up. She wanted accuracy and ad-
dition errors, leaving out tax, this sort of thing and
ringing up of it.
I think she brought up several instances of me dust
making mistakes, errors and this type of thing.
Q. Did she correct you on these errors?
A. Sit down and explain to me, you know, "You
added wrong here," or something like that.
Jorgenson testified as follows:
Q. Are you familiar with the circumstances under
which Twilla Johnson was hired at the store?
A. Yes.
Q. Will you tell us about that, please.
A. Twilla came into the store and made application
sometime in mid June.
Q. Of 1974?
A. 1974. And I recognized her as being qualified for
the interior decorating job that was being hired for.
And- so I set up an appointment for her to talk to
Hazel Hardeman, and they discussed her qualifica-
tions.
Q. When you say they, who was they?
A. Hazel and Twilla discussed it.
Q. And then what happened?
A. Hazel came in and told me that Twilla would be
hired as soon as the decorating program was put into
effect and the date for that had not been established.
Q. And was the interior decorating program put
into effect?
A. Yes, at sometime in September of 1974.
Q. What happened at that time?
A. Hazel said or she came in and gave me so and so
date that Twilla would be starting. Then I set up a
training schedule for her.
Q. And she was hired?
A. Yes.
Hardeman denied Jorgenson's statements. Johnson was
not called to testify. Jorgenson was an impressive witness.33
As pointed out above, Hardeman's testimony is replete
33 Jorgenson's testimony relative to hiring and training procedures was
corroborated by Douglas, who is credited elsewhere herein. Jorgenson cred-
ibly testified that she gives new employees a store orientation lesson and
trains them in the operation of cash registers. All other training is left to
department managers . She said she screens applications for procedural com-
pleteness , but twat interviewing is the responsibility of department manag-
ers.
with statements contrary to fact and evasions. Jorgenson is
credited.
Stotts testified that Hardeman has gone to out-of-town
promotional meetings and there independently committed
Respondent for the purchase of merchandise. Hardeman
did not deny that statement. Stotts testimony is credited.
Discussion
Hardeman's contention that she never discussed work
with the salesgirls in her department effectively was dis-
proved by General Counsel's witness Willard, who testified
that Hardeman instructed the girls and was "worried"
about inaccurate sales slips and explained errors to Willard
on several occasions.
Hardeman's statement that she had no authority in the
scheduling of hours also was disproved by Willard, who
asked for a transfer because Hardeman inequitably was
scheduling Willard for excessive night and weekend work.
Hardeman's statement that she had nothing to do with
Johnson's hire was disproved by Respondent's witness Jor-
genson , whose testimony withstood cross-examination.
Hardeman's testimony, on the other hand, did not with-
stand cross-examination. Further, Hardeman acknowl-
edged that she talked with Johnson before the latter's hire
and advised her about the job that would be available.
Hardeman acknowledged that she knew more than any-
one in the store about draperies, and that management re-
lied on her. She testified about her training of employees in
her department; her evaluating the work of employees and
discussing the evaluations;34 that she ran the department;
that she once was told she was a supervisor; that she at-
tended 39 training sessions devoted to the manual; that she
was responsible for her department meeting goals ; that she
instructed employees both orally and in writing relative to
their work; and many other areas of responsibility that
involved supervision of the salesgirls in her department,
and exercise of independent judgment.
Hardeman's effort to avoid being thought of as a super-
visor was strenuous. That effort obviously was intended to
mask the true nature of her work, and it therefore fairly
can be inferred that she knew she was considerably more
than just another salesgirl.
The conclusion cannot be avoided that management
considered Hardeman to be the supervisor of the employ-
ees in her department, that she considered herself to be the
boss of the department, that the employees of the depart-
ment considered her to be the boss, and that Hardeman
exercised supervisory authority and independent judgment
as those terms are used in the Act 35
3. Terry Hartfield
Hartfield first was employed by Respondent in Decem-
ber 1972. Later he was promoted to display manager,
34 On at least one occasion, by her testimony.
35 Of parenthetical interest is the refusal of Hardeman and (as discussed
below) Hartfield to redo appraisals condidered by management to be exces-
sively magnanimous. Such defiance is not consistent with rank-and-file sta-
tus It is consistent with a status of authority assumed by supervisors who
insist that their appraisals will remain in the files as they made them
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where he remained until June 27, 1974, at which time he
became manager of the sporting goods department. The
sporting goods department had one full-time employee, be-
sides Hartfield, and one part-time employee who worked
about 20 hours each week.
Before Hartfield was transferred to sporting goods,
Stotts talked with him in the presence of Lewis and Doug-
las.36 Stotts, who is credited, stated "we discussed that [the
department manager's job] at quite length, of responsibili-
ties, and went through numerous conversations about run-
ning a department and handling the functions and details
...." Hartfield said he would let Stotts know, and 2 or 3
days later he agreed to take the job. Stotts told Hartfield
that Lewis would work closely with him. Hartfield said he
considered the job to be "a little bit more" than that of a
salesman . He said he was Joyce Holland's "boss" when he
was display department manager, and that he perceived
the job of sporting goods department manager "to be that
of a salesman and a person who would be held responsible
for the paperwork, for the mundane paperwork in the de-
partment." That paperwork included "basics, the basic list,
markdowns, markups, SFVD (inventory)." Hartfield testi-
fied that he decided to take the job primarily because of
the increased amount of money involved.37 He said he took
2 days to decide because he was doubtful about the week-
end work, the schedule variation, and the bookwork that
would be involved in the new job.
Hartfield worked in sporting goods a week and a half or
2 weeks to learn the department, "until the previous de-
partment manager's two-week notice had run out."
As was the situation with Hardeman, Hartfield down-
played his authority and attempted to show that his work
was simple and easy,' involving no independent discretion
or judgment. However, his description of his job, particu-
larly on cross-examination, is instructive.
Hartield testified that his work as department manager
involved the following, among other things: He inter-
viewed five or six persons for employment and made rec-
ommendations, and one of them was followed when Greg
Seaton was hired 38 The sporting goods department admin-
istratively was aligned with the adjacent departments of
lawn and garden, and toys, with those latter departments
being managed by Brian McMillan. Work schedules for all
departments were prepared by McMillan, who had two
employees in his department .3 Although Hartfield did no
36 Corroborated by Douglas
37 Between $ 1,000 and $2,000 per year
38 Hartfield said he told Jorgenson , "I think this person is all right for
hire ." Hartfield went on vacation shortly thereafter , and when he returned
Seaton was working in the carpet department Lewis credibly testified that
Hartfield alone made the decision to hire Seaton, that no member of the
staff talked with Seaton until after he was hired Lewis said Hartfield select-
ed Seaton from among two or three applicants Lewis said he never saw
Seaton's application ; and he said he first saw Seaton about 3 days after he
was hired . As discussed elsewhere herein, Watts was responsible for obtain-
ing Seaton to work in the carpet department when Seaton was laid off from
the sporting goods department during Hartfield 's absence.
39 McMillan credibly testified
A I had two and, to my knowledge , there was two in the Sporting
Goods area
Q. Did these employees work and sell in all three departments9
A Yes. They were completely mobile
work appraisals while in the sporting goods department, he
filled out one on Joyce Holland while he was display man-
ager40 Douglas told Hartfield to redo it because he ap-
praised Holland too highly, but Hartfield did not redo it.
On October 19 Hartfield was told by Stotts that he had
authority to hire and fire, but he had never been so told at
any other time41 Hartfield said he counted basics, record-
ed markdowns and markups, and "did some VCB's" (ven-
dor charge-backs, which is a method of instituting return to
vendors of defective merchandise). He said he filled out
forms for registration of boats and trailers,42 did some
housekeeping in the department, stocked shelves, and put
up displays. Hartfield said the three departments (sporting
goods, lawn and garden, and toys) were grouped together
in order that one department manager would be present at
all times, and that some of the time during each week he
was that manager. He said it was necessary to have a de-
partment manager available to approve checks, make re-
funds, and hear customer complaints. Hartfield said he at-
tended all department manager meetings, made his own
decisions on how to sell and to display merchandise, direct-
ed salesmen in their work, and made work assignments to
employees. Hartfield testified that the department was a
"mess" when he took it over; that his predecessor was re-
miss in keeping up the basics and VCB's, there were prob-
lems with boat registrations, and there were customer com-
plaints that had not been corrected. Hartfield said he
attempted to correct the situation, but one customer was
lost in the process. He testified he went on one business
trip for Respondent, which lasted 3-1/2 to 4 days. He said:
The purpose of it, as I understand it, is to introduce
sporting goods people in Montgomery Ward- this in-
cludes department managers and merchandise manag-
ers and direct managers, that sort of thing, to new
lines of sporting goods that will be coming out in the
following year.43
Q Could you explain why these employees were allowed to work
and sell in all three departments9
A. Well, it was a matter of convenience really. We shared the em-
ployees knowing that if one employee was to be ill in one department
we could use someone from that department to readily fill in. Schedul-
ing was easier in that respect
Q. It was a matter of coverage on the floor9
A Coverage, yes And it was designed to have a department manag-
er there in the three departments for just about every hour that the
store was opened, to approve checks, handle complaints, such as that.
Hartfield is not credited in his testimony that he did not consult with Mc-
Millan relative to schedules Hartfield said he "guessed" McMillan was his
supervisor, but that testimony is contrary to the record, and it is not cred-
ited.
40 Display is a nonsellmg department
41 This was Hartfield's testimony on cross-examination, elicited after he
denied ever having been so told by Stotts , and after being shown his earlier
affidavit.
42 Douglas is credited in his testimony that only the department manager
(here, Hartfield) was given authority to obtain (governmental) approval to
resister boats and trailers Douglas' testimony is corroborated by Lewis
3 Lewis credibly testified about Hartfield's trip-
Q. (By Mr Michas) Prior to Mr. Hartfield going to Tantara, did you
have a talk with him9
A Yes, I did. Just prior to Terry Hartfield leaving for Tantara, he
came to see me and he was very, very new in the department . I think he
was a little apprehensive as to what he was going for, why he was going,
what he was going to do. He asked me if he could buy anything while
MONTGOMERY WARD & CO.
Hartfield testified that he, and he alone, conferred with
Respondent's merchandiser based in Denver when sport-
ing goods were discussed; that he alone took any criticism
concerning basics; that whether the department makes
money or not "fell mostly directly on my shoulders"; that
he managed every phase of the department to fulfill sales
and profit goals, and everything to further those goals; and
that he did the necessary training of employees in his de-
partment.
Hartfield stated that he was told by Stotts in August,
September, and October that he was not performing satis-
factorily in his job, and that Lewis put him on probation in
early September.44 In August or September, Lewis told
Hartfield:
And he was very critical of the fact that my basics
were in late, and he told me that I wasn't pushing Ron
Skidmore enough. He told me that if Ron Skidmore
wasn't doing the job, I should come and tell him, Mr.
Lewis, and he would take pare of it.
Hartfield replied:
JUDGE STEVENS: Did you say anything to him about
the-pushing of Skidmore?
HARTFIELD: Yes, as a matter of fact, I did. I said that
I felt that Ron Skidmore was doing a fairly good job;
that was about it.
Hartfield testified that he ignored the criticism by Lewis
and that, some time later, he was criticized and talked to
by Stotts. He said Stotts told him that he should be more
aggressive, and:
The second specifiic thing I remember was that it was
brought up, the name of Ron Skidmore, and he said,
"Get after Ron Skidmore and make sure he does the
work," carries the load. I don't remember anything
specific other than that.
Q. I notice on your appraisal, it's marked less than
satisfactory in the area of supervision. Was that dis-
cussed with you by Mr. Stotts or Mr. Lewis?
A. Yes, I think it was discussed by Mr. Lewis.
Q. What did he say? Do you recall?
A. He used some examples of how one time I think
he saw Ron Skidmore with his hands in his pockets.
He used the example about one time he walked over
he was there. I said, "Well, why don't you get your open to buy and we
will take a look at it and see what you have got to spend." We took a
look at it, and I believe we decided that he could spend a particular
figure. I want to say $2-thousand. I may be wrong. If he saw something
there that was real good and would be good for Christmas and/or the
fall season, we discussed it. I tried to caution him on some of the things
to stay from, that I thought were good, bad, nonetheless. We dis-
cussed it a little bit, came up with a dollar figure that Terry could spend
while he was in Tantara Just took a look at his open to buy and so
forth.
Q He had authority to buy at the meeting; is that correct?
A. Yes.
44 The attachment to Hartfield's appraisal, Resp. Exh. 11, lists areas that
needed improvement. Item 5 reads "Improve the department's ability to
recognize and respond to customes [sic] immediately, i.e., every off the floor
at once."
197
and it appeared that both Skidmore and Mark Walene
together were not doing anything and he asked them
"What are you doing?" and they said they didn't know
or didn't have anything to do, and answers like that.
Q. What did he say so far as the performance was
concerned vis-a-vis that situation? By that situation, I
mean employees, salesmen, standing around with
hands in their pockets?
A. You mean what Mr. Stotts and Mr. Lewis said?
Q. Yes, did they relate this to you?
A. They said I should get these people to help me to
do supervisor's tasks of counting basics and taking
markdowns and markups and making sure they are
busy all the time.
Hartfield said he ignored Stotts' criticism as he had ignored
Lewis'. He further stated that, after the criticism, he was
spending about 60 percent of his time selling and 40 per-
cent of his time doing other things.
Stotts testified without contradiction or denial by Hart-
field:
I talked to him about, specifically, his productivity
of the people he had in his department.
I again remember Skidmore, -specifically, because
he was a full-time man, and had been there quite some
time. I felt we weren't getting productivity out of Skid-
more and/or Mr. Hartfield because the functions, the
elements were just so atrocious, and I did discuss with
him that he should push himself and Skidmore. Let's
get the things going like it should be. I just didn't think
he was managing the department and his people, and
told him so.
Lewis credibly testified that he repeatedly talked with
Hartfield about the latter's unsatisfactory work and on
September 4 prepared a memorandum (Resp. Exh. 14) out-
lining his talks. Among other things, the memorandum
states "I asked him to look at his' organization and make
changes where necessary to get the job done."
Discussion
At the outset it is noted that Hartfield initially was reluc-
tant to take the job of department manager of sporting
goods because of the burdensome nature of the "mundane
paper work" and other things that were involved 45 It took
2 or 3 days for him to decide to take the job, and the
decisive factor was the fact that he would take more mon-
ey-about $1,000 to $2,000 per year-than at his then job
as display manager. Although Hartfield testified that his
work in sporting goods wasrabout the same as that of the
principal salesman, Ron Skidmore, he later acknowledged
that such was not the case. Had that been the case, there
would have been no reluctance• to take the job at such a
substantial wage increase. Clearly, Hartfield was taking an
appreciable jump in responsibility and salary, and he was
aware of the serious nature of the job that was offered.
It is also noted that Hartfield spent approximately 2
weeks with the former department manager before the lat-
45 He said he later discovered that even more was involved than he first
thought.
198 DECISIONS OF-NATIONAL LABOR RELATIONS BOARD
ter left; that time was spent learning the job of department
manager. Such would not be the case if only a sales job was
involved. Further, Hartfield's training as a department
manager continued after-he took the job, at regular train-
ing sessions based on the manual and other training mate-
rial.
Hartfield's exercise of supervisory authority and mde-
pendent judgment are amply attested by his own testimo-
ny. He coordinated work schedules with McMillan, 46 was
entirely responsible for the department's profit margin, di-
rected salesmen in their work, recognized that his predeces-
sor left the department in a "mess" and tried to correct the
situation, took one business trip and conducted business
involving independent judgment and discretion, managed
every phase of the department, and did the necessary train-
ing of employees. Such functions clearly are supervisohal.
Without a supervisor carrying out those functions, Respon-
dent could not effectively run the 'department. By
Hartfield's estimate , he was spending at least 40 percent of
his time doing nonselling work involved in his position as
department manager. That was work that only he was au-
thorized by Respondent to do. He was paid a 1 percent
override on all sales -made in the department, to compen-
sate for the responsibilities he had-and for the fact that
those responsibilities reduced his selling time., Under such
circumstances it is clear, and.-found; that Hartfield was a
supervisor as that term is used in the Act.
Hartfield testified that he did not appraise Skidmore, but
that is immaterial since it is apparent that McMillan was in
a far better position to do so than the -then recently pro-
moted Hartfield. Such practice is common in business.
Hartfield also testified that he never reprimanded, laid off,
hired or fired any employee, but that statement is in error
since;" as established by his own and by Lewis' testimony,
Hartfield alone made the decision to hire Seaton. Further,
Hartfield acknowledged that Stotts told him in October
that he had authority to hire and fire. However, even if the
statement were true, arguendo, that is not diapositive of the
issue, for several reasons. First, Hartfield was in the job of
department manager but a short time , and there is no
showing that any of those actions were required during
that period of time, other than the action involving Seaton.
Second, the record shows that Hartfield was not perform-
ing satisfactorily in his job. Finally, it is not essential to
supervisory status that such authority be held or exer-
cised.47 The naming of functions in Section 11 of the Act
that may indicate supervisory status is in the disjunctive,
not the conjunctive.
C. Summary-Supervisorial Status
The decision that Watts, Hardeman, and Hartfield 48
were supervisors, as that term is defined in the Act, is
grounded on their own testimony. It is not necessary to
look elsewhere for a description of their duties and respon-
46 McMillan credibly testified that he and Hartfield, as department man-
agers, had first choice of coffee and meal breaks. Employees thereafter were
assigned their hours.
4 Henry Colder Company, 163 NLRB 105 (1967)
48 And equally , Rosencrans, as discussed below
sibilities. However, there is other, abundant support for
Respondent's contentions relative to the supervisoral status
of the three. (a).The.manual,unquestionably shows depart-
ment managers to be supervisors. The three employees in-
volved herein effectively acknowledged being told repeat-
edly (39 times in the cases of Hardeman) that they were
supervisors when they acknowledged that,they attended
meetings at least once each week devoted to training based
on the manual. (b) Stotts credibly testified that he viewed
the three as supervisors, and expected them to conduct
themselves in accordance with the manual. No instance
was shown wherein Stotts treated any of the three differ-
ently-from the manual requirements, or tolerated any devi-
ation therefrom. (c) Lewis, credited elsewhere herein, testi-
fied in manner similar to Stotts, and in language closely
paralleling the manual, when he stated that both Harde-
man and Hartfield had total responsibility for their depart-
ments, the'-personnel, assignment of work, and scheduling
of hours therein. In no instance was it shown that Lewis
treated any of the aforesaid three in any manner differently
from manual requirements, or tolerated any deviation from
the manual.49
General Counsel argues that the discharges of Watts,
Hardeman, and Hartfield constituted 8(a)(1) violations be-
cause the discharges "had such an effect on the unit that it
chilled all union activity from the discharges- to the pre-
sent." That argument has no support, in law or fact. Were
it found that the discharges were occasioned by the dis-
chargees' refusal-to comply with a.request by Respondent
that they interfere with employees' protected activity, pos-
sibly violations of Section 8(a)(1) could be found. Tallade-
ga Cotton Factory, Inc., 106 NLRB 295, enfd. 213 F.2d 208
,(C.A. 5, 1954); Eastman Broadcasting Company, Inc., 188
NLRB 80 (1971). However, it is-clear that the discharges
solely',were because the three supervisors refused to, discon-
tinue the wearing of union buttons following a arning.
The record is devoid of any indication that Respondent
attempted in any manner to use the three supervisors as
informants against, or destroyers of, the Union. To the
contrary, the prounion views of the three were well known
to Respondent. They would be most unlikely prospects for
a Trojan horse effort. The record does not support the re-
quested 8(a)(1) violations. Eastman Broadcasting Co., supra.
General Counsel's witnesses testified that all department
managers punch timeclocks. Respondent contends that re-
quirement is solely in order to simplify compliance with
wage and hour laws. The point is of no weight, in view of
49 Respondent argues in its brief that its department managers are "mana-
genal employees" and therefore are excluded from the provisions of the Act,
and cites N L R B v Bell Aerospace Company, Division of Textron, Inc, 416
U S 267 (1974), as its authority The Supreme Court in Textron held that
"manage"rial employees" are not covered by the Act, but it remanded the
case to the National Labor Relations Board "to permit the Board to apply
the proper legal standard in determining the status of these buyers." The
Board has applied no such "legal standard" to the status of retail store
department managers, hence there is no specific precedent on which to rely
in assessing the argument of Respondent herein
It is considered neither necessary nor desirable to-make such an assess-
ment in this case As shown above, the department managers involved in
this controversy clearly are supervisors as that term is used in the Act, and
therefore specifically are excluded from the provisions of the Act. Respon-
dent's argument, while of interest, need not be met for resolution of this
controversy
MONTGOMERY WARD & CO.
the above-described facts showing supervisonal status. The
following facts further support this finding. (a) Department
managers are salaried, whereas salespeople are on a hourly
wage basis. (b) Department managers receive a 1 percent
override on all department sales, which salespeople do
not.50 (c) Respondent maintains and follows a separate pay
scale for department managers (Resp. Exh. 28). Such pay
guides are not maintained for salespeople. (d) The evidence
shows that Watts, Hardeman, and Hartfield all earned
more than any of their salespeople.
General Counsel points to the fact that the employees
involved herein all voted in the election, and that, there-
fore, Respondent did not consider any of them to be super-
visors. However, such voting does not determine superviso-
ry status. Presto Manufacturing Company,, 168 NLRB 1073
(1968).
It isfound that paragraph VI(b) of the complaint is not
supported by the, evidence.
D. Alleged Violations of the Act
(a) Paragraphs V(e) and V(k) were withdrawn by Gener-
al Counsel during the hearing -herein.
(b) Paragraphs IV and V of the amended consolidated
complaint, Cases - 27-CA---4091 and 27-CA-X1124,. were
amended to allege in paragraph IV that Douglas J. Muir is
regional employee labor,relations manager of Respondent,
and to allege in paragraph V that:
On or about the last week of February, 1974, Respon-
dent acting by and through its agent, Douglas Muir,
threatened its employees that it might liquidate the
Fort Collins store should the Union be successful in its
organizational campaign.
The aforesaid two amendments were omitted from the
amended consolidated complaint, Case 27-CA-4305. Re-
spondent argues that the alleged violation of Section
8(a)(1) of the Act involved in said paragraphs IV and V
should not be considered. That argument is not accepted,
because the matter was fully litigated at hearing, and Re-
spondent is not prejudiced. Eugene Noyes, a commission
salesman for Respondent, testified that, in late March or
early April, he and five' other- employees met with Muir,
Douglas, and Stotts. Noyes testified:
Well, Mr. Muir, he was the speaker conducting the
meeting and he stated that we were there-he was
there for a reason, because they had a problem with
the store, and he was there to rectify that and also to
stop the union if at all possible. He stated that the
union wouldn't be any good for any of the employees,
that the union would' cost the employees, and that
they would only give the employees the money that
they wanted them to be given and not what the union
thought they should give them, and furthermore, if the
union got in and they wanted to, they could close the
store. -
50 An override is not necessarily controlling in determining supervisory
status, but it may be, and has been, a factor of considerable importance.
Henry Colder Co., supra
199
Muir denied the threat to close the store. Noyes said Wil-
lard was one of the employees, present when the alleged
statement was made. Willard testified at length, but she
was not asked, nor did she testify, concerning the alleged
meeting and statement. Louis Brown testified concerning a
meeting in early 1974, but he was unable to give an approx-
imate date. His testimony_ was rambling and lengthy, and
almost entirely different from that of Noyes, except the
single statement that Muir was alleged to have made:
THE WITNESS: "No union is going to tell us what we
must pay. In the first place, a union is going to have to
negotiate with us. Whatever a union gets, it must come
to us," speaking of the Montgomery Ward Company
as us, "even if it means closing this store down."
Because of the vague nature of Brown's testimony, and its
essential difference from that of Noyes, it is given weight.
Based upon observation of the witnesses and their demean-
or on the stand, and upon the absence of support for the
alleged statement, Muir is credited and it is found that this
allegation of the complaint is not proved.
(c) Paragraph V(a), (b), and (c) of the complaint allege
certain 8(a)(1) violations by Stotts. The employees involved
in those allegations have been found, above, to be supervi-
sors, hence the allegations are not violations of the Act.
(d) Paragraph V(d) of the complaint alleges that, on or
about March 27, Stotts interrogated an employee concern-
ing union activities.
The employee involved in this allegation is Lois Miller,
manager of the ladies accessories department. She testified
that Stotts interrogated her on March 27, concerning the
Union.
Miller testified that Stotts called her into his office
March 27:
A. First he asked me what I thought of the union,
and-I told him I was for it,'and then he brought out
the La Junta contract, and he said I shouldn't have to
pay to work at Wards, and if the union came in the
company, people who wanted to advance at Wards
wouldn't be able to.
Q. Was anything else said in the conversation?
A._ He asked me if I had any complaints, and I told
him yes, men and women in the store did identical
work, but were not paid the,same wages . Then he
showed me the paper work- that showed how the men
were paid based on the items in the department.
Stotts did not deny the statements attributed to him by
Miller. In view of Stotts' union animus as shown herein,
and in view of the circumstances surrounding the conver-
sation, Stotts' interrogation was coercive. The only ques-
tion is whether Miller was a supervisor at the time of the
interrogation.
Miller was manager of the ladies' accessories department
until May 1974. Two part-time salesgirls worked in the de-
partment during lunch and break periods and at night.
Their hours were scheduled by Miller, subject to approval
by Douglas, In May 1974, Miller became manager of boys'
wear.
At the time Miller was department manager of ladies'
-accessories her working hours were 9 a.m. to 6 p.m. She
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that she kept the basic book, conducted sales pro-
motions, and sold. She said she assigned work to the part-
time employees and made evaluations of the work of those
employees. However, the evaluations were made together
with the manager of the fashions department, where the
part-time employees regularly were employed. Miller testi-
fied that=She exercised independent judgment in ordering
merchandise for her department, but that the orders "can
always be changed." Miller attended the Saturday meet-
ings held by Stotts with all department managers and went
on one brief business trip to Denver. Generally, she per-
formed the same housekeeping and record-keeping tasks
that other department managers performed.
The status of department heads employed by Respon-
dent has been the subject of litigation in several cases. The
early parameters of the problem were established in Mont-
gomery Ward & Co., Inc., 93 NLRB 640 (1951). The depart-
ment heads there performed the same duties as rank-and-
file employees, worked the-same hours, and punched a
timeclock; however, they did have a higher rate of pay.
Their supervisory duties consisted of transmitting instruc-
tions to employees from the general or assistant store man-
agers and leading the less experienced workers. In some
instances the department heads had no 'employees to su-
pervise; there were 18 department heads but only 20 em-
ployees. Given those factors, as well as the absence of evi-
dence that the department heads had the power to
effectively recommend the hiring, promotion, transfer, dis-
charge, or discipline of employees, or that they had been
informed that they possessed such authority, the Board
found the department heads were not supervisors.
Subsequently, in Montgomery Ward & Co., Inc., 187
NLRB 956, 962 (1971), two new probationary department
heads were found to be supervisors. In contrast to the pre-
vious case, these two supervisors made out work schedules
for, and supervised the work of, other employees (subject
to the, approval of a supervisor) and they attended a super-
visory meeting. The Board found that they had the title
and were in the role of a supervisor "lacking only the com-
pletion of the probationary period to consummate their
status ...." Significant was the fact that they actually
were supervising other employees and "participated in
other supervisory functions . . . ." This decision was of-
fered by Respondent in a subsequent case, Montgomery
Ward & Co., Inc., 198 NLRB 52 (1972). However, the Ad-
ministrative Law Judge found that the facts set out in
Montgomery Ward & Co., Inc., 187 NLRB 956 (1971), were
not detailed enough to allow for accurate comparison and
that he thus was not bound by that determination. The
Board affirmed the Administrative Law Judge's decision
that it was significant to ascertain what, if any, supervisory
power had been exercised, that is, whether the department
head either possessed or exercised the authority to
"`effectively recommend' or `responsibly direct' within the
meaning of the Act, or was more than a leadman-type
rank-and-file employee whose judgment was valued,
sought, and considered." Those department heads found to
be supervisors actually supervised from six to eight em-
ployees, were exempt from wage and hour law (salaried),
made about $100 more than supervised employees, and
had exercised the right to hire. Those department heads
who had been involved in supervisory work only in an inci-
dental and on a sporadic basis were found not to be super-
visors.
It is thus seen that the Board's ascertainment of supervi-
sory status is' not determined by title, attendance at man-
agement meetings, or added responsibilities that any more
experienced employee might be assigned.'A rank-and-file
employee cannot be turned into a' supervisor "by giving
him a title and theoretical power to perform one or more of
the enumerated supervisory, functions ...." 51 Thus, al-
though such factors may be helpful indicia, the key factors
the Board has chosen are the existence of power to (a)
"effectively recommend" with respect to hiring, firing,
transfer, etc., and (b) "responsibly direct" the work and
schedules of supervised employees in more than,-an inci-
dental way. As for the former, it is important, although not
necessarily determinative, that this power to make recom-
mendations has been exercised. Also considered is the im-
port management accords such recommendations. As for
the latter factor mentioned above, it is essential to the car-
rying out of this supervisory duty that there be employees
to supervise on more than a casual, sporadic basis.
Applying the foregoing principles to the case of Lois
Miller, it is seen that she cannot be found to be a supervi-
sor, since she had no employees to effectively supervise.
Her hours were 9 a.m. to 6 p.m., and the only times the
employees came to her department-from the fashions de-
partment were times Miller was away from the floor; i.e.,
during meal times and at night. It is apparent that the
salesgirls who assisted Miller were assigned to, and (pre-
sumably) were supervised by, the manager of the fashions
department.
So far as Respondent's managerial argument is con-
cerned (discussed above), the record does not'contain facts
adequate for a finding that Miller was a "managerial em-
ployee," even if the argument were accepted.
It is found that this allegation is supported by the record.
(e) Paragraph V(f) of the complaint alleges that, on or
about March 28, Stotts asked an employee to discourage
fellow employees from supporting the Union and threat-
ened that employees would,not be permitted to advance to
management positions if the Union were selected as the
employees' collective-bargaining representative.
Frank Austin testified that he is a commission salesman
for Respondent and that he was called in to Stotts' office
March 28 or 29. Austin testified:
A. Yes, he told me that if 'you belonged to the
union, you couldn't go up in management , and so at
that time I asked him if Jim Kavet could become a
manager, and he said no. Then he changed his mind
and said that he didn 't think so, but it wouldn't be
very likely.
THE COURT: Who is Jim Kavet?
THE WITNESS: Jim Kavet was the man that worked in
plumbing and hardware , or plumbing. At the time he
was a commission salesman and he wanted to go up to
management and he was a very good friend of mine
51 N.L R'B v Southern Bleachery & Print Works, Inc, 257 F.2d 235 (C.A.
4, 1958).
MONTGOMERY WARD & CO. 201
and he wanted to go to the management training pro-
gram and become a manager for Montgomery Ward,
and that's the reason I was very curious about it at
that time.
THE WITNESS: To the best of my recollection when I
came in he asked me if I would talk to some people in
the store and to try to convince them that it was better
for the store not to go to the union at the time... .
Stotts denied the statements attributed to him by Austin.
Stotts acknowledged that he talked with Austin about
the Union, showed him two contracts with unions at other
stores, and suggested that Austin talk with employees at_
other stores about the Union.
Based upon Stotts' rather extensive conversation with
Austin about the Union, Stotts' obvious interest in seeing
the union movement defeated, and the appearance and de-
meanor of the witnesses, Austin is credited. It is found that
the statements made by Stotts to Austin were coercive and
in violation of the Act.
(f) Paragraph V(g) of the complaint states that, on or
about October 16, Respondent coerced its employees in the
selection of employee members of the Union's bargaining
committee, by refusing to negotiate with the employees
who had been selected.
On October 16 at 7:10 p.m., Respondent and the Union
met in Fort Collins for a bargaining session. Present were
Scheidt, Muir, Stotts, and Douglas for Respondent;
Thorne and Rafsky for the Union; and Hardeman, Watts,
and Austin for the employees. Hartfield came into the
meeting after it started. Respondent's Exhibit 8 is a copy of
Muir's notes taken at the meeting. It shows, in support of
Muir's testimony, Respondent's position relative to bar-
gaining. That position is, as shown in the notes:
Scheidt: While were waiting let me explain to you
one our initial position. We don't feel we are legally
obligated to bargain over or with super's and we feel
Mrs. Hardeman and Mr. Watts are super's. As such
we're willing to meet and bargain and prepared to do
so now, just won't proceed ' as long as Watts and
Hardeman in the room and on your committee.
Thome: Are you refusing to bargain?
Scheidt: Only insofar as if they [Watts and Harde-
man] are present in room on your committee, they
leave, we'll bargain.
The Union disagreed with Respondent's position and at
7:47 p.m. the. meeting was discontinued upon Thorne's
stating "You'll be hearing from us, let's go."
The record shows 52 that Respondent remained willing to
bargain with the Union at all times relevant herein, and
made specific offers pursuant to that willingness, subject to
nonparticipation in the bargaining process, of supervisory
personnel.
Watts, Hardeman, and Hartfield have been found to be
supervisors, as discussed above. It is clear from the record,
and from Muir's notes, that Respondent did not refuse to
52 G.C. Exh. 12-26.
bargain; rather, it refused to bargain only so long as its
supervisors were present. At no time did Respondent ob-
ject to the presence of Austin, who was not a supervisor.
Supervisors are outside the provisions of the Act. Being
in a position close to management, it is reasonable and
proper for Respondent to refuse to bargain with its super-
visors. Such refusal is not coercive, nor is it in violation of
the Act.53
(g) Paragraphs V(h) and (j) of the complaint allege that
Stotts threatened employees on or about October 19 and
November 2 because of their union activities. Respondent
moved at hearing to dismiss those two allegations because
no testimony or evidence was introduced in support there-
of. That motion hereby is granted. Paragraph (h) involves
Watts, Hardeman, and Hartfield, found herein to be super-
visors. No evidence was introduced in support of (j).
(h) Paragraph V(i) of the complaint alleges that, on or
about November 2 and 4, Stotts ordered employees to re-
move union buttons.
Steve Baker, a salesman for Respondent, testified that,
on or about November 21,54 Stotts told him to remove the
union button on his lapel. He said he removed the button.
Stotts denied the allegation.
Baker was uncertain about the date of the incident, but
was positive that he was told he could not wear the button.
Stotts testified that he had a store policy against store man-
agers wearing union buttons, but the policy did not reach
nonsupervisory employees. However, Stotts acknowledged
asking Baker about the button, and flipping the button, or
Baker's lapel, with his hand. Such action clearly is coercive,
in view of Stotts' acknowledged opposition to the Union,
Stotts' position as store manager, and the inherent threat
embodied in Stotts' action in confronting Baker in such
manner.
The case of United Parcel Service, Inc., 195 NLRB 441
(1972), cited by Respondent, is inapposite. The button in
that case was a union office campaign button, and the pro-
hibition affected only uniformed drivers. The Board held
that protected activity was not involved, and relied princi-
pally on the fact that the limitation was directed to the
wearing of a complete, proper uniform during work time-
no attempt to interfere with intraunion activities was
found. Here, there was direct interference with union orga-
nizational activity, which is quite a different case. Under
the circumstances, Baker is credited and the allegation is
found supported by the evidence.
(i) Paragraph VI(a) of the complaint alleges that, on or
about May 7, Respondent discharged Rosencrans because
of his union activities.
Rosencrans resigned from his job May 6, 1974. It is Gen-
eral Counsel's position that Rosencrans was entitled to 2
weeks' pay thereafter. There is no contention that Rosen-
crans was unlawfully discharged; rather, it is contended
that he was discharged 2 weeks prior to the expiration of
his resignation notice.
53 Buckeye Village Market, Inc, 175 NLRB 271 (1969); General Electric
Company, 173 NLRB 253 (1968), Kennecott Copper Corporation 98 NLRB
75 1952), Douglas Ancraft Company, Inc, 53 NLRB 486 (1944)5 Baker said he was dust "guessing" about the date, but it was "around
November "
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rosencrans was employed by Respondent for approxi-
mately 5 years and, when he quit, he was manager of the
auto parts department, which job he had-held about 3
years. There were three other employees in the department,
one part-time and two full-time.
As did the other department managers involved herein,
Rosencrans downplayed his role of department manager
and stated "I feel I was dust another employee ...." He
testified that his job included the following duties and re-
sponsibilities , among other things: He sold,55 counted the
basic book, made out work schedules, stocked shelves, kept
the files, cleaned the department, ordered parts,56 evaluat-
ed employees,57 brought merchandise to the floor, checked
with management to ascertain- why employees failed to
come to work, instructed employees on how to sell, attend-
ed department managers ' meetings , distributed sales quotes
to salesman after receiving them from management, main-
tained gross profit for the department, traveled to mar-
keting meetings , approved checks up to $75 or $100, ap-
proved refunds up to $50 or $100, and interviewed
employees after they were hired by management and be-
fore they were scheduled for work. Rosencrans said he had
made recommendations for hire, but his recommendations
were not followed: he asked that an employee be transfer-
red, but the transfer was not made; he complained to
Douglas about an employee who refused to count the basic
book, but Douglas would do nothing about the complaint;
he caught a boy stealing in his department, but Douglas
told Rosencrans to mind his own business.
Stotts testified as follows:
Q. Mr. Stotts, would you describe what the duties
and responsibilities were of Mr. Rosencrans in his job
on May 6, 1974?
A. Department manager's responsibility in 61, au-
tomotive department, is to run an organization, peo-
ple, merchandise, sales , inventory controls, direction
of work of other people, teach, training, showing other
people in methods of sales, inventory controls, proce-
dures and policies that is giving training meetings of
department managers to communicate to their other
people, buy and sell merchandise, control inventories
in line with sales and other individual respective de-
partments,' merchandise presentation whether it is in-
viting, following the Company plan, attend promo-
tional and advertising meetings, decide items to be
promoted in bulk, total running of a little store within
the big building is the easiest way I can explain Mr.
Rosencrans' responsibility as a department manager,
as I understand it, in my experience with Montgomery
Ward & Co. These responsibilities are shown and
taught and discussed at meetings at which Rosencrans
attended.
Douglas and Lewis testified in general concerning the
duties and responsibilities of department managers.
55 He said sales occupied about 75 percent of his time
56 Based upon previous years' sales Amounts sometimes changed by the
merchandise manager
57 Sometimes changed by management when the evaluation was consid-
ered too high
Discussion
General Counsel elicited much information from his wit-
nesses, including Rosencrans, intended to show that, al-
though Respondent alleges that department managers have
and exercise supervisorial control over their departments,
those managers in fact are tightly controlled and exercise
no independent judgment. Rosencrans testified that he had
no authority to hire, fire, grant time off, discipline, or
otherwise control the employees in his department.
Stotts explained Rosencrans' duties and responsibilities,
which closely parallel those set forth in the manual. There
were three salesmen in Rosencrans' department. He denied
training those salesmen, but he also testified that he in-
structed them-in salesmanship. He said management could,
and occasionally did, change the hours he scheduled em-
ployees to work, but he said he did prepare those schedules
and that, usually, they were followed as he prepared them:
He testified relative to tasks that he assigned to salesmen.
He received a 1 percent override on all sales in his depart-
ment, regardless of who made them. He said he did not
interview prospective employees, or hire and fire them, but
he did state that new employees were sent to him, and he
interviewed them prior to their going to work. He said his
appraisals of employees were subject to change by manage-
ment, but the fact remains that he appraised those employ-
ees, found them satisfactory or unsatisfactory, and dis-
cussed the appraisals with those appraised. He disparaged
his training, but it is clear that he attended regular depart-
ment manager meetings at which the manual was dis-
cussed. He also disparaged his authority to exercise inde-
pendent judgment, but Stotts credibly testified that
Rosencrans regularly bought merchandise for his depart-
ment and maintained his own inventory.58
It is difficult to imagine a more sensitive supervisory re-
sponsibility than that of regularly appraising employees,
and Rosencrans acknowledged he performed that function.
Such appraisals directly and immediately affect the liveli-
hood of a salesperson, and the, effect can long outlive em-
ployment with Respondent. The fact that management
can, and occasionally may, require that appraisals be re-
done because they are, too ,.high, or can, and may, make
some changes, is immaterial. Notice is taken that such ap-
praisal change is common practice by private and public
employers.
It is apparent that Rosencrans was the "boss" of his de-
partment. He scheduled hours, assigned tasks, interviewed
employees before they went to work in the department,
appraised those employees, worked longer hours than his
salesmen, was on a salary, received an override on all sales
in the department, did all the bookwork, and spent at least
25 percent of his time (by his estimate) doing nonselling
work. Any salesman working in the department under such
an arrangement could not help but know that Rosencrans
was his supervisor.
Finally, Rosencrans regularly was appraised by manage-
ment, as a department manager 59 Respondent's Exhibit 3
is his appraisal dated April 4, wherein he is rated "S"-on
ss The fact that inventory was controlled is immaterial No store has, or
lon^ can have, uncontrolled inventory
5 As are all department managers
MONTGOMERY WARD & CO. 203
"Develops competent sales people" and "Stimulates the
sales performance of salespeople." His overall appraisal
was satisfactory. Under the heading "Suggestions for Im-
provement" is the remark "George needs to work at im-
proving his sales force. He needs to continue to train, stim-
ulate, and set objectives for his sales people." The appraisal
is signed by Douglas and Rosencrans. Rosencrans said he
discussed the appraisal with Douglas.
In view of Rosencrans ' status as a supervisor, he is not
covered by the Act, and Respondent did not violate Sec-
tion 8(a)(1) and (3) as alleged in paragraph V(a) of the
complaint.60
(j) Paragraph XV of the complaint alleges that, since on
or about October 16, Respondent has refused to bargain
with the Union.
Muir credibly testified that he met with Thorne on Au-
gust 28:
Thereafter, we tried to settle this case and a settle-
ment agreement was consummated , and Mr. Simons,
the union attorney, and I talked, and I agreed to go to
Denver to pick up their proposals because I still had
the Dallas appointment.
I drove from Fort Collins to Denver to Local 7's
office, I think it is on Colfax Avenue, I am not really
sure, and Dan Thorne was in the office with Mr. Hart-
field and Ms. Miller. As I recall, that's the three peo-
ple there. He handed me three copies of his proposal.
We'chatted about what each other was doing, and he
was going to Europe, and I left about five minutes
later.
I did not open up the proposals, did not read them.
There was no discussion whatsoever about them. He
stated he wanted to meet in September, and gave us
some dates which I referred to Mr. Scheidt.
Therefore, a meeting was scheduled for September,
and Dan had to go to Europe suddenly.
JUDGE STEVENS: Dan Thorne?
- THE WITNESS: Yes, Dan Thorne, and that meeting
was scratched, and the next time the parties all could
get together was that October 16th, 18th, whatever it
was.
Q. (By Mr. Michas) How much time did you spend
at the union office that day?
A. From the time I entered and until the time I left,
I doubt if it was ten minutes.
The next meeting was October 16, the circumstances
concerning which are discussed in paragraph (f) above.
As previously discussed, it is quite clear that Respon-
dent's refusal to bargain was predicated solely upon the
presence of its supervisors at the bargaining table. Respon-
60 Having found that Rosencrans was a supervisor , it is not necessary to
make findings relative to the facts of his discharge However , it is noted,
parenthetically , that Respondent has neither policy nor practice concerning
notice to quit ; that quits are on a case-to-case basis It is also noted that
Douglas, an impressive witness who is credited , stated that he left Respon-
dent the day he resigned , and that it is common for department managers to
do the same thing. Finally, an experienced successor to Rosencrans was
immediately available
dent told the Union that it would bargain if those supervi-
sors left the room.
Supervisors are a part of management, and a refusal to
bargain with them is management's prerogative." Respon-
dent did not violate the Act when it stated its position to
the Union, and when it held to that position thereafter.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
Respondent's activities set forth in section III, above,
occurring in connection with the operations of Respondent
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act, I
shall recommend that it be ordered to cease and desist
therefrom, and to take certain affirmative action designed
to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Montgomery Ward & Co., Incorporated, is, and at all
times material herein has been, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Retail Clerks Union Local No. 7, chartered by Retail
Clerks International Association, AFL-CIO, is, and at all
times material herein has been, a labor organization within
the meaning of Section 2(5) of the Act.
3. By asking an employee to use his influence to discour-
age fellow employees from supporting the Union, by
threatening that employees would not be permitted to ad-
vance to management positions if the Union were selected
as the employees' bargaining representative, by ordering an
employee to remove a union button, and by interrogating
an employee concerning her union activities, Respondent
has engaged in unfair labor practices in violation of Sec-
tion 8(a)(1) of the Act.
4. Respondent did not, through alleged conduct, violate
Section 8(a)(1), (3), and (5) of the Act, as alleged in para-
graphs V(a), (b), (c), (e), (g), (h), and (1), VI(a) and (b), and
XV of the complaint.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the above findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:
Si
Buckeye Village Market, supra, General Electric Co, supra, Kennecott
Copper Corporation, supra, Douglas Aircraft Company, supra
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER62
The Respondent, Montgomery Ward & Co., Incorporat-
ed, Fort Collins, Colorado, its officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Retail Clerks Union
Local No. 7, chartered by Retail Clerks International As-
sociation, AFL-CIO, or in any other labor organization,
by asking an employee to use his influence to discourage
fellow employees from supporting said Union, by threaten-
ing that employees would not be permitted to advance o
management positions if said Union were selected 'as the
employees' bargaining representative, by ordering an em-
ployee to- remove a union button, and by interrogating an
employee concerning her union activities.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights to self-organization, to form, join, or assist labor or-
ganizations, including the above-named organization, to
bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities.
2. Take the following affirmative action, which it is
found will effecutate the policies of the Act:
(a) 'Post at its Fort Collins, Colorado, operation copies
of the attached notice marked "Appendix." 63 Copies of
said notice, on forms provided by the Regional Director
for Region 27, after, being duly signed by an authorized
representative of the Respondent, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that the notices are not altered,
defaced or covered by any other material.
(b) Notify the Regional Director for Region 27, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
62 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions, and Order , and all objections thereto shall be
deemed waived for all purposes.
63 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"
IT IS FURTHER ORDERED that paragraphs V(a), (b), (c), (e),
(g), (h), and (l), VI(a) and (b), and XV of the complaint be
dismissed.
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 all sides had an opportunity to
present evidence and state their positions, the National La-
bor Relations Board has found that we have violated the
National Labor Relations Act and has ordered us to post
this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representatives of
their own choosing
To engage in activities together for the purpose of
collective bargaining or other mutual aid or protec-
tion
To refrain from the exercise of any such activities.
WE WILL NOT discourage membership in Retail
Clerks Local No. 7, chartered by Retail Clerks Inter-
national Association, AFL-CIO, or in any other labor
organization, by asking employees to use their influ-
ence to discourage fellow employees from supporting
said Union, by threatening that employees will not be
permitted to advance to management positions if said
Union is selected as the employees' bargaining repre-
sentative, by ordering employees to remove union but-
tons, and by interrogating employees concerning
union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights to self-orgainization , to form, join, or assist
labor organizations, to bargain collectively through
representatives of their own choosing , to engage in
concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain
from any or all such activities.
MONTGOMERY WARD & CO., INCORPORATED