Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

Jan 17, 1977

227 N.L.R.B. 1170 (N.L.R.B. 1977)

1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Montgomery Ward & Co., Incorporated and Retail,
Wholesale and Department Store Union, AFL_
CIO. Case 12-CA-6629
January 17, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On August 11, 1975, Administrative Law Judge
Michael O. Miller issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, except as modified
herein.
The Administrative Law Judge found that Respon-
dent violated Section 8(a)(1) of the Act by various
acts which interfered with, restrained, or coerced
employees in the exercise of their statutory rights. We
affirm these findings. We disagree, however, with the
Administrative Law Judge's failure to find a violation
of Section 8(a)(3) and (1) in the discharge of Janis
Roberts.
The Discharge of Janis Roberts
Janis Roberts, a salesperson in Respondent's televi-
sion department, was discharged on January 7, 1975,
purportedly for having violated Respondent's policy
on employee discounts. The Administrative Law
Judge found that Roberts was a good employee, had
recently been considered for a supervisory position,
and had made an honest mistake in granting an
unauthorized discount to a customer. The Adminis-
trative Law Judge held, nevertheless, that Respon-
dent did not violate Section 8(a)(3) by its discharge of
Roberts for her error because he found insufficient
evidence that she had been discharged for union or
other protected activities. Contrary to the conclusion
reached by the Administrative Law Judge, we believe
the circumstances here provide substantial support
I On January 9, 1976, the Board issued a Decision and Order adopting the
findings, conclusions , and recommendations of the Administrative Law
Judge In the absence of exceptions , the Board adopted, pro forma, the
Administrative Law Judge 's finding that Jams Roberts had not been
discharged in violation of the Act Thereafter, the General Counsel filed a
motion to reopen the record and reconsider the decision , advising the Board
227 NLRB No. 169
for the inference that Roberts was discharged for her
union activity.
Janis Roberts was clearly identified as a leading
union adherent. In November 1974, Roberts partici-
pated in the Union's drive to organize Respondent's
Orlando employees. Roberts distributed cards during
her break and slack periods and received authoriza-
tions from 20-25 employees. Since Roberts had acted
openly in her union activities, Store Manager Shine
called her into his office, with her respective depart-
ment manager, informed her that she had been
reported as having engaged in union activity, and
read portions of the Company's policy on solicitation
and distribution to her. The Administrative Law
Judge found that, in view of its singling out of union
adherents in the locus of managerial authority,
Respondent's conduct was designed to interefere with
protected concerted activity and violated Section
8(a)(l). The Administrative Law Judge found a
further violation of Section 8(a)(1) based on Manager
Shine's promise of benefit to employee Roberts in the
event she would cease her organizing activity. This
promise of benefit was found implicit in Shine's
suggestion of a possible promotion of Roberts to the
managerial level.
Against this background of Roberts' prominent role
in union affairs and Respondent's unfair labor
practices aimed at her and other union adherents was
Roberts' unintentional infraction of Respondent's
employee discount rule. The rule entitles employees
and members of their immediate family who reside
with them a 10-percent discount on merchandise
purchased. However, the Administrative Law Judge
found insufficient evidence that Respondent had
fully apprised Roberts of the details of its discount
policy. Moreover, the evidence showed that Respon-
dent was lenient in its enforcement of the rule to the
extent that Respondent encouraged the granting of
discounts with special promotions and discounts for
particular groups to increase sales . Likewise, the
evidence revealed that Respondent's employees were
lax in their adherence to the requirement that they
verify that the customer resided with the employee.
The Administrative Law Judge based his dismissal
of the 8(a)(3) charge largely on Respondent's showing
that other employees had been dismissed for inten-
tionally abusing the discount privilege. At the Orlan-
do store, three employees were dismissed for breach-
es; one employee sold her boyfriend a clock for his
mother, another employee purchased home furnish-
ings for friends relocating in the area, and a third
that the exceptions and bnef, specifically directed to the Administrative Law
Judge 's dismissal of the 8 (aX3) charge , had been timely sent by him to all
parties, and to the Board , though evidently these documents were not made
available to or considered by the Board poor to the issuance of its Decision
and Order Thereafter, the Board granted the General Counsel's motion and,
on January 20, 1976, vacated its prior Decision and Order
MONTGOMERY WARD & CO.
employee had purchased merchandise in the sporting
goods department for a nonemployee. By contrast,
Roberts made an unintentional error by selling a
television set with a discount to another employee's
parents; unlike the other discharged employees,
Roberts had no personal involvement with the
customer. It is noteworthy that the Administrative
Law Judge credited Roberts' version of the sale. He
found that employee Cheryl Blythe told Roberts that
her parents would be in to buy a television set, and to
take care of them. In crediting Roberts' version of the
sale, the Administrative Law Judge found that: (1)
Roberts honestly believed that the Blythes were
entitled to the discount; (2) Roberts had nothing to
gain from giving the discount and, in fact, the
discount cost her money; and (3) when confronted by
Respondent, she prevailed in omitting any language
in a statement which constituted an admission of
intentional wrongdoing. Respondent's employee dis-
count rule, on the forms signed by Roberts, provided
for discharge in the event of "intentional" guilt, or
abuse.
In light of the above sequence of events and the
Administrative Law Judge's own credibility findings,
we believe the evidence establishes that Roberts
would not have been discharged by Respondent were
it not for her union activities. As detailed above,
Respondent had singled out Roberts and several
other union adherents for admonishments relating to
their union activities, and Roberts in particular had
been impliedly threatened with loss of promotion
possibilities if she did not cease such activities.
Thereafter, Respondent utilized what the Adminis-
trative Law Judge himself found was an unintention-
al violation of employee discount rules to justify her
discharge. The General Counsel was able to show a
number of instances of employee laxity in verifying
whether employee discounts were properly given, and
the Administrative Law Judge found in effect that
Respondent itself had been lax in informing Roberts
and other employees about the details of the discount
rules. In these circumstances, we believe that, were it
not for Respondent's desire to rid itself of a recog-
nized union leader, Respondent would have reacted
less strongly to Roberts' indiscretion; at the least,
faced with conflicting versions of the incident from
employees Blythe and Roberts, Respondent would
have undertaken further investigation. Instead, Ro-
berts was summarily discharged.
We conclude that Roberts' violation of the discount
rule was but a pretext, and that the real reason for her
discharge was her union activities. Accordingly, we
find that Respondent's discharge of Roberts consti-
tuted a violation of Section 8(a)(3) and (1) of the Act.
Amended Conclusions of Law
1171
Substitute the following for the Administrative Law
Judge's Conclusion of Law 5:
"5. Respondent has violated Section 8(a)(3) and
(1) by discharging Jams Roberts because of her union
activity."
Amended Remedy
Add the following to the Administrative Law
Judge's Remedy:
"Among other things, the recommended Order
shall require Respondent to reinstate and make whole
Janis Roberts in accordance with F. W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962)."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Montgomery Ward & Co., Incorporated, Orlan-
do, Florida, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Add as paragraph 1(d) the following, relettering
the present paragraph (d) as (e):
"(d) Discharging employees in order to discourage
them from being or becoming union members or
supporting the union."
2. Add as paragraphs 2(a) and (b) the following,
relettering the present paragraphs accordingly:
"(a) Offer Janis Roberts reinstatement to her
former position or, if that position no longer exists, to
a substantially equivalent one, without prejudice to
her seniority or other rights and privileges, and make
her whole for any loss of pay that she may have
suffered by reason of the discrimination against her,
in the manner set forth in the section of the Board's
Decision entitled, `Amended Remedy.'
"(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order."
3. Substitute the attached notice for that of the
Administrative Law Judge.
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 the opportunity
to present their evidence the National Labor Rela-
tions Board has found that we violated the National
Labor Relations Act and has ordered us to post this
notice and to comply with what it says.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any and all these things.
WE WILL NOT promulgate or announce a no-
solicitation rule for the purpose of discouraging
union activities.
WE WILL NOT promise or imply that employees
will receive promotions if they cease their union
activities.
WE WILL NOT create the impression that the
union activities of our employees are under
surveillance by management.
WE WILL NOT discharge employees in order to
try to discourage our employees from being or
becoming union members.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of your
rights under the National Labor Relations Act, as
amended.
WE WILL offer Janis Roberts full reinstatement
to her former position or, if that position no longer
exists, to a substantially equivalent one, without
prejudice to her seniority or other rights and
privileges, and make her whole for any losses she
suffered because of our discrimination.
MONTGOMERY WARD &
CO., INCORPORATED
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge: This
case was heard before me on May 19 and 20, 1975, based
upon a charge filed January 13, 1975, by Retail, Wholesale
and Department Store Union, AFL-CIO, herein the
Union, and a complaint issued by the Regional Director for
Region 12 of the National Labor Relations Board on
March 11, 1975. The complaint alleges that Montgomery
Ward & Co., Incorporated, herein Respondent, violated
Section 8(a)(1) and (3) of the Act by discharging Janis M.
Roberts because of her union activities and by various
other acts interfering with, restraining, or coercing employ-
ees in the exercise of their statutory rights.
Upon the entire record in this case, including my
observation of the witnesses and their demeanor, and after
due consideration of the brief submitted by Respondent
and General Counsel's oral argument, I make the follow-
ing:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is an Illinois corporation with an office and
retail store in Orlando, Florida. During the 12 months
preceding the issuance of complaint herein, a representative
period, Respondent sold and distributed merchandise the
gross value of which exceeded $500,000 and, during the
same period of time, purchased and received at its Orlando,
Florida, store goods and products valued in excess of
$50,000 which had been shipped to it from outside the State
of Florida. Respondent is an employer engaged in com-
merce within the meaning of the Act and it will effectuate
the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Union Activity and the No-Solicitation Rule
Insofar as reflected by the record, union organizational
activity among the employees at Respondent's West
Colonial Avenue store in Orlando, Florida (the only store
involved herein), began sometime in October 1974. On
November 1, 1974, a group of approximately seven sales-
persons, including Janis M. Roberts, met at the home of
John Parker, the Union's International representative,
signed union authorization cards and received additional
cards for distribution to Respondent's employees. On the
following day, Roberts distributed cards at the store and
secured approximately 20 to 25 signed cards from her
fellow employees. Her activity occurred on breaks and
during slack periods on the sales floor. She made no effort
to keep her activity secret and was observed by Mr. Yow,
the store controller, and by a security guard.
Respondent, as a nationwide concern with retail stores in
every State, has a policy in regard to solicitations and
distributions. That policy, as set forth in its manual, and to
the extent relevant herein provides:
DISTRIBUTION OF LITERATURE AND SOLICITATION ON
COMPANY TIME FOR NON-COMPANY ACTIVITIES
Employees may not distribute union literature or solicit
membership in unions, or fraternal, religious, social, or
political organizations on Company time, or while
employees to whom literature is being distributed, or
MONTGOMERY WARD & CO. 1173
whose membership is being solicited, are on Company
time. Company time is that time which the employee is
scheduled to be on duty and for which the employee is
being paid, excluding rest periods, lunch periods, and
time before and after the employee's working day.
Solicitation is permitted on Company property so long
as the employees, both those soliciting and those being
solicited, are on their own time and the solicitation is
conducted in a quiet and orderly manner and does not
interfere with the operation of the Company's business.
Meetings or speeches are not permitted; solicitation
which results in disturbing or interfering with the work
or function of any of the employees or department is
forbidden; solicitation which is detrimental to main-
taining the premises in a clean and attractive condition
is forbidden.
Solicitations for charity drives and fund raising camp-
aigns are to follow the guidelines for solicitation as
outlined above. The Company generally supports one
all-out community charity drive. Prior approval is
required for any additional chanty drives held on
Company property ... .
The manual is a management document, not intended for
distribution to employees.
Prior to approximately November 4 or 5, 1974, this policy
was not posted in the Orlando store. Neither was it brought
to the employees' attention when they were initially hired or
thereafter. The record reveals that employees were general-
ly unaware of any policy on solicitations. Some charitable
solicitations were permitted or encouraged by Respondent.
Both employees and supervisors conducted raffles in the
store, although there was no evidence that these took place
on working time.
However, when it was reported to Store Manager
Woodrow Shine that employees were engaging in union
activity in the early part of November, Shine had the policy
statement drafted in the form of a notice to employees and
posted on the bulletin board. In addition to posting the
notice, Shine called into his office separately three employ-
ees, Janis Roberts, Jeff Pemberton, and Jake Jacobs, who
had been reported to Shine as having been engaged in
union activity. Contrary to the assertions in Respondent's
brief, the record does not establish that Shine received
reports that the three employees had engaged in their
activities at times or places which would contravene
Respondent's policy statement.' The separate meetings
were essentially identical. Each employee was brought to
Shine's office by his or her department manager. Shine
informed each of them that it had been reported to him that
he or she had been involved in union activity and, while he
did not know if the reports were true or false, he wanted
that employee to know what the store's rule was. He then
read portions of the notice to each of them.2
I Roberts acknowledged that her solicitations took place, in part, on
"working time " No such evidence was offered in regard to Pemberton or
Jacobs Neither was there any evidence that Roberts' activities on "working
time" were observed or reported to Shine
2 The foregoing is a composite of the essentially nonconflicting testimo-
According to Roberts, after Shine read her the solicita-
tion policy they continued to talk and discussed the
opportunities for women to achieve managerial positions at
Ward's and the possibility of her becoming a manager. He
told her that there were managerial positions coming
available for which she would be eligible. She indicated an
ambition to manage a "big ticket" department (television
and appliances) and he stated that, because of the lifting,
the management of such departments was man's work. He
told her that, in his opinion and in his experience, unions
did not benefit employees, particularly commission sales
personnel. He concluded by stating that he hoped her union
activities would not continue, that she was a good salesper-
son, he enjoyed having her in the store, and hoped she had a
future there. Shine denied discussing managerial opportuni-
ties or the union with Roberts at that time. He did
acknowledge a subsequent conversation with her wherein
her management potential was discussed. As between Shine
and Roberts, I am constrained to credit Roberts, whose
recollection of the events was somewhat more detailed and
specific than Shine's. I note, in so concluding, that Roberts'
testimony includes the statement by Shine wherein he
indicated that he would not give her a "big ticket"
department to manage, which tends to minimize the value
of the alleged promise of a benefit and lends some credence
to her version. I also note that Carver Teague, Roberts'
supervisor and the only possible corroboration of the
conversation, was not called in defense by Respondent.
General Counsel does not assert that the above-quoted
no-solicitation and no-distribution rule is invalid on its
face. Rather, the General Counsel contends that the
manner in which the rule was promulgated, the reading of it
to selected employees who were union activists, the posting
of it only after the commencement of union activity, and
the alleged disparate treatment of other types of solicita-
tions render the promulgation of this rule unlawful.
Treating the latter factor first, I do not find evidence from
which to conclude that the rule was discriminatonly
applied. The only evidence of other solicitations which
would appear to have been made during working time
involved the consolidated charitable fund-raising drive
known as the United Fund. The Board has repeatedly held
that an employer's limited allowances of worktime for
charitable solicitations does not render the maintenance of
a rule prohibiting union solicitation unlawfully discrimina-
tory. See, for example, Sequoyah Spinning Mills, Inc., 194
NLRB 1175 (1972); Serv-Air, Inc., 175 NLRB 801 (1969).
Notwithstanding that Respondent maintained a nation-
wide policy in regard to solicitations and distributions, the
promulgation of the rule herein is equivalent of the
adoption of an entirely new rule inasmuch as those who
were subject to the rule, the employees, were previously
unaware of its existence. This case is thus distinguishable
from Veeder-Root Company, Altoona Division, 192 NLRB
973 (1971), relied on by Respondent, wherein at the outset
of a union campaign employees were merely reminded of a
no-solicitation rule of which they had prior knowledge.
mes of Shine, Roberts, and Pemberton, with the greatest reliance having
been placed upon that of Pemberton, the least interested of these witnesses.
Neither Jacobs nor any of the department managers who had been present
was called to testify in regard to these meetings.
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, the timing of an otherwise valid rule 's promulga-
tion , to coincide with the start of organizational activities,
standing alone , would , I believe , be insufficient to establish
its unlawfulness . Sequoyah Spinning Mills, Inc., 194 NLRB
1175 (1972).
Respondent 's promulgation of the rule in the instant case
does not stand alone . Shine promulgated the rule herein in
a manner which would appear to be part of a pattern within
the Montgomery Ward organization ; simultaneously post-
ing it for the general population of employees while reading
it to the leading union adherents , in the locus of authority
with the employee 's immediate supervisor standing by. See
Montgomery Ward & Co., Incorporated, 202 NLRB 978
(1973), and Montgomery Ward & Co., Incorporated, 189
NLRB 80 (1971 ). See also Montgomery Ward & Co.,
Incorporated, 220 NLRB 373 (1975). Such a procedure
would reasonably tend to discourage an employee from
engaging in any activities on behalf of the union , particular-
ly where the employee was neither observed in, nor accused
of, violating the policy written . This leads me to conclude
that the promulgation of the rule herein in this manner was
intended "to interfere with the employee's rights of self-
organization rather than to maintain production and
discipline ." Accordingly , I find that Respondent violated
Section 8(a)(1) of the Act by the promulgation and posting
of its no-solicitation and no-distribution rule in early
November 1974. Montgomery Ward & Co ., Incorporated
189 NLRB 80 (1971).
Additionally , I have found that Shine coupled his
admonitions to Roberts with a suggestion that she could
achieve a promotion to the managerial ranks and an
expression of both his opinion of unions and his hopes that
she would cease her union activities and have a future at the
store . Such expressions are, I find , none too subtly implied
promises of benefits if the employee would cease her
protected activities , and constitute a further violation of
Section 8(a)(1) of the Act.
B. Additional 8(a)(1) Allegations
Robert Costa , a sales employee in the Orlando store
testified in regard to two conversations with his immediate
supervisor, Glen Thompson , which are alleged to be
unlawful interrogation . The first occurred in October, after
the first union meeting . While standing with a group of
salesmen , Thompson allegedly asked Costa how the meet-
ing turned out . It was only with some prodding by General
Counsel that Costa claimed that Thompson had said
"union meeting ." Costa told Thompson that he had not
been there , and walked away . He did not hear the entire
conversation between Thompson and the other salesmen.
Thereafter, around the end of October or early November,
according to Costa , "Mr. Thompson asked how the union
was going , if it was making progress , and dust general
conversation in regards to it ." Again with the help of a
leading question , Costa related that Thompson "just asked
if we had any new members."
Costa also related two conversations with William
Frazier , the personnel manager . In the first one, in late
October or early November , Frazier allegedly asked Costa
whether he had signed the "little card ." They bantered back
and forth over the words "little card," but Frazier never
specifically referred to union authorization cards. On
another occasion , about the same time , Frazier allegedly
told Costa, "Ever since you've been back , we've been
having trouble with the union . Do you have anything to do
with it?" Costa testified , "And I never took it as a personal
question, and I says, `Yeah, didn't you know I was the lead
man?' "
Glen Thompson was not called to rebut Costa 's testimo-
ny. Nonetheless , I am not inclined to predicate a finding of
violation upon that testimony . The testimony as to both
alleged inquiries was vague , unspecified, and unconvincing.
Even if they occurred , which I doubt , both inquiries were
too ambiguous to warrant findings of violation.
William Frazier was called as Respondent's witness. He
had no recollection of asking Costa whether he had signed a
"little card," and he specifically denied the alleged second
conversation . I am inclined to credit Frazier . I note, in so
finding, in addition to their demeanor as witnesses, that
Costa was later discharged by Respondent3 and Frazier
was no longer in Respondent 's employ. These facts create a
basis for questioning Costa's objectivity and give weight to
Frazier's testimony.
General Counsel 's complaint alleges that Respondent, by
Woodrow Shine , created the impression of surveillance of
union activities and threatened an employee with discharge
if he engaged in solicitations on behalf of the union. It
would appear that these allegations are founded upon
Shine's meeting with Jeff Pemberton which, according to
Pemberton, took place on or about November 28, 1974, as
alleged in the complaint . As credibly related by Pemberton:
Well, I was brought in and Mr . Shine told me that he
had rumors to the effect that I was involved in union
activities , and he didn't know how true they were or
anything, but that he had a rule that he wished to read
concerning this that the company had, and which he
did.
In so doing , Shine let Pemberton know that the union
activities of employees were being observed and reported to
management . Such knowledge tends to inhibit and restrain
employees from engaging in that activity. As such, Shine's
statement violated Section 8 (a)(1) of the Act. Gerbes Super
Markets, 176 NLRB 11 ( 1969). There was no evidence that
employees , other than Roberts, engaged in union activity
openly or that it was general knowledge that Pemberton
was so engaged . This case , then , is distinguishable from
such cases as Ohmite Manufacturing Company, subsidiary of
North American Phillips Corporation, 217 NLRB 435 ( 1975),
wherein the Board held that such employer statements did
not violate the Act where the union activity was engaged in
openly.
However, I do not find that Shine threatened Pemberton
with discharge if he engaged in solicitations on behalf of the
union. Shine read Respondent 's rule to Pemberton , and the
3 An unfair labor practice charge based upon that discharge was either
dismissed or withdrawn
MONTGOMERY WARD & CO. 1175
rule neither as written nor as recalled by Pemberton
contained such a broadly worded threat.
C. The Discharge of Janis M. Roberts
General Counsel contends that Janis Roberts was dis-
charged on January 7 , 1975, because of her union activities.
Respondent defends , alleging that she was discharged for
violation of Respondent 's policy on employee discounts.
Roberts began working for Respondent at its Orlando
store in April 1974. Immediately prior thereto she had been
hired and worked for a month at a Ward 's store in Akron,
Ohio . She was a salesperson in the television department.
There is no question but that she was a good employee and
earned substantial commissions . Prior to the discovery of
the incident for which Respondent claims to have dis-
charged her , she was considered and tested for supervisory
positions.
Much testimony was adduced concerning Respondent's
employee discount policy and Roberts ' knowledge of it.
The policy is clear : employees and members of their
immediate family who reside with them are entitled to a 10-
percent discount on the price of most merchandise pur-
chased at Ward 's. Somewhat less clear is the responsibility
of a selling employee to verify a customer 's entitlement to
that discount . Ideally, according to Respondent 's witnesses
and its training document,4 the selling employee should see
the employee's identification card or the relative's family
card and the customer should sign either the salescheck or,
in the case of a small cash sale, an employee discount tally
sheet. The practice did not achieve this ideal. Employees
did not always check the discount card or secure signatures
on the tally sheet, particularly where they knew the other
employee or had been introduced to the employee's
relative.
It is also clear that Respondent considers abuse of the
discount privilege to be a serious matter . The personnel
manual , a management document , outlines the discount
policy and the procedures for granting a discount, stating:
Use of the discount privilege in obtaining merchandise
for unqualified people , and other abuses, is considered
adequate cause for dismissal.
A similar statement is contained in some of the orientation
booklets usually given to new employees. The protection
unit report , used for reporting actions taken by protection
managers in those stores which have such managers,
provides for reporting the number of employees terminated
for discount violations . Discharges for this reason through-
out the Ward 's organization and at the Orlando store were
not unusual . Store Manager Shine credibly testified that
such discharges averaged approximately four per year in
the various stores he had managed in more than 30 years as
manager . Evidence was adduced of two such discharges in
the year prior to Roberts ' termination , and one thereafter,
at the Orlando store.
Again, whether Roberts had knowledge of the discount
policy and its attendant procedures is less clear than the
existence of the policy itself. While twice hired by Respon-
dent , whose practice it is to give all employees an orienta-
tion , she claimed to have received no orientation . Yet, at
least when employed at the Akron store, she signed a
number of documents indicating her understanding of
company rules , regulations , and procedures , which docu-
ments were part of the usual orientation routine. One of
these signed by her states, inter alia:
Employee involved in the following irregularities will be
discharged IMMEDIATELY in all cases where the evidence
establishes intentional guilt.
8. Intentional abuse of employee DISCOUNT PRIVILEGE.
From these documents signed by Roberts I conclude that
she received an orientation when first employed by Re-
spondent in Akron . I note, however , that while she signed
the concluding page of a training booklet entitled "You are
Montgomery Ward - Welcome," that booklet does not
describe the limitations upon the discount policy, only
stating that "You are given a 10 percent discount on most
purchases at retail ...." Neither does it describe the
procedures to be followed by a selling employee on
discount sales . I also note that on April 26, 1974, while
employed at the Orlando store , Roberts signed a sheet of
paper indicating that she had read the "Conduct and Dress
Code." That document , while not containing the proce-
dures or restrictions in regard to the discount policy, would
normally be signed by an employee during an orientation. I
would therefore find that Roberts was also exposed to some
orientation at the Orlando store . I cannot, however,
conclude that Roberts was even made fully cognizant of the
restrictions on that policy, specifically those which limited
the availability of the discount to members of the employ-
ee's immediate family residing with that employee as it
could not be established that she was even shown any
document so limiting the availability of the discount
privilege. Neither could it be shown that she was verbally
instructed to verify that the customers resided with an
employee.
I note further that , while employees were , on occasion,
discharged for violation of the discount policy, there was
laxity among sales employees, from whom Roberts learned
many of Respondent's policies and procedures , and among
first-level supervision , in granting such discounts. Thus,
employees Pemberton and Neal testified that they made
sales to the relatives of other employees without checking to
determine if they lived with the employee. Pemberton
testified that while he knew the rule and had made at least
one such sale in the presence of a department manager he
had never been told that he should check to see where the
customer resided . Similarly Roberts testified as to one
incident wherein she brought her husband's parents to the
store where they purchased furniture at a discount without
being asked by the salesperson whether they resided with
Roberts and her husband.
Evidence was also introduced concerning other discounts
granted by Respondent. Discounts of 10 percent were given
to a wide range of persons , including employees of Ward's
contractors and related companies , police, firemen , and, as
4 Instructions to see a customer's employee identification card are register Roberts trained with this manual Other than such instructions, the
contained in the manual used to train sales personnel in the use of the cash orientation did not emphasize the employee discount procedures.
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
part of special promotions, to all credit customers or
anyone else who might be in the store dunng special after-
hour sales. During slack periods, employees were encour-
aged to purchase merchandise with their discounts. Dis-
counts were thus used as a regular inducement to spur sales.
Such then was the background of Respondent's policies
and Roberts' knowledge and experience when the incident
for which she was allegedly discharged occurred.
On October 24, 1974, Cheryl Blythe, secretary to Store
Controller Yow, passed through the television department
in the morning and told Roberts, with whom she was
acquainted, that her "mom and dad" would be in that day
to get a television. She asked Roberts to take care of them;
she did not ask Roberts to extend them a discount .5
Roberts approached the Blythes when they came into the
television department later that same day to look at the
merchandise. They identified themselves by asking if she
knew Cheryl. Roberts said that she did. According to Mrs.
Blythe, Roberts then told the Blythes that they could use
Cheryl's discount and insisted that they accept a discount,
either Cheryl's or her own, notwithstanding that they
protested that they were not entitled to it and had been so
informed by Cheryl the previous evening. Roberts, accord-
ing to Mrs. Blythe, offered to call Cheryl about the discount
and Mrs. Blythe told her not to bother. Roberts denied
insisting that the Blythes accept the discount or even
mentioning the discount to them. The Blythes, who had not
indicated a reluctance to buy a television set without a
discount, accepted the discount and made a cash purchase.
The discount saved the Blythes $44. It reduced Roberts'
commission on the sale by approximately $2.40.
In resolving the foregoing credibility question I note, on
the one hand, Mrs. Blythe's relative neutrality in this
matter. I note, on the other hand, that Roberts had nothing
to gain from granting the discount; in fact, it cost her
money. Further, Roberts was not aware of the fact that the
Blythes were Cheryl's in-laws; she believed they were her
parents. Neither did she know that they did not live with
Cheryl or that this was a significant fact in granting a
discount. I note also Roberts' offer to call Cheryl for the
Blythes. From these facts, in light of the background of
Roberts' limited knowledge of the discount policy and the
manner in which discounts were handled in the store, I
conclude that Roberts believed the Blythes to be entitled to
the discount, told them they were so entitled, and granted it
to them for that reason.
That evening, Mrs. Blythe told Cheryl that Roberts had
given them the discount. Cheryl did not report it to her
superior, Yow. Neither did she or her in-laws take any steps
to cancel the sale or correct the price.
According to Cheryl Blythe, a couple of days after the
sale she told Roberts that she appreciated the discount
given to her parents but wanted Roberts to understand that
she could be discharged for giving an unauthorized
discount. Roberts allegedly stated that if it made the
5 Cheryl Blythe denied advising Roberts that anyone was coming in to
make a purchase Based upon what I deem to be the inherent probabilities,
the consistency of such a state of facts with the manner in which Roberts
identified Mr and Mrs Blythe when they arrived, the fact that the Blythes
had called Cheryl the previous evening in regard to their probable visit to the
store, and the comparative demeanors of the witnesses, I credit Roberts
6 Within a week or two after the purchase, Carver Teague, manager of the
difference between making or not making a sale she would
give a discount. Roberts denied this statement and claimed
that she told Cheryl that she believed the Blythes had been
entitled to the discount. I credit Roberts, noting particular-
ly my conclusion that, in fact, she believed them to be
entitled to the discount and the fact that the discount was
not necessary in order to make the sale.
The discount came to management's attention in mid-
December 1974, when, during a routine audit of records
kept of radiation-emitting equipment, Yow noticed a
salescheck containing the name Blythe and an employee
discount.6 He asked Cheryl about it and she told him,
essentially, that which was related by Cheryl and her
mother-in-law at the hearing, that Roberts insisted that the
Blythes use her (Roberts') discount in order to make a sale.
Thereafter, a statement of the incident was taken from
Cheryl by Respondent.
On January 7, 1975,7 Edward Ferrell, Respondent's field
protection supervisor, came to the Orlando store and
confronted Roberts with the evidence that she had given an
improper discount, the salescheck, and Cheryl's statement.
The interview was conducted in the store manager's office.
No one else was present. Roberts told Ferrell that she had
thought that the Blythes were Cheryl's parents and that, as
such, were entitled to the discount which she gave them. It
was only after they discussed the rules and the sequence of
events that Roberts acknowledged that she should have
checked further, that she should have asked to see a
discount card. Roberts denied the statement attributed to
her by Cheryl to the effect that she would grant a discount if
it meant the difference in making a sale . Roberts agreed to
pay the $44 to Montgomery Ward, believing that to do so
would save her job. Ferrell asked her to sign a statement of
the events and, although she tried to postpone giving a
statement on the basis that she was feeling ill, she was
persuaded to sign a statement which Ferrell helped word.
She prevailed in omitting from the statement language
which would have constituted an admission of intentional
wrongdoing. The statement, in relevant part, stated:
On Oct. 24, 1974 I sold a Mr. Earl Blythe a color TV set
for 499.95. At the time of the sale Mr. Blythe said his
daughter worked for the Orlando store. As a result of
this conversation I extended an employee discount to
Mr. Blythe which totaled $44.00 because he was a father
of an employee. I should have checked further with his
daughter if he was allowed to use her discount.
I realize my actions cost the company $44.00 and would
like an opportunity to pay the allowance back to the
company. I have given the above explanation freely & is
the truth.
Ferrell took the statement to Powell, the operating
manager who was in charge of the store during Shine's
vacation. After a review of the statement, Powell and
television department , went to the Blythes' home to service the set There is
no evidence that he saw the salescheck or otherwise learned of the discount
at that time
r The uncontradicted explanation for the delay between discovery of the
discount and management 's confrontation with Roberts was the press of
other business commitments upon Ferrell, the field protection supervisor
MONTGOMERY WARD & CO. 1177
Ferrell returned to the office where Roberts was waiting.
Powell told her that he had no choice but to terminate her
for violation of company policy and procedure relative to
the unauthorized discount.
Upon due consideration of all the above, I am convinced
that Janis Roberts gave the Blythes a discount in good faith,
believing that they were entitled to it as parents of an
employee. I note particularly the lack of evidence that
Roberts was acquainted with all the restrictions upon the
use of the discount, the general laxity among employees in
verifying entitlement to such discounts, and the absence of
any benefit to Roberts in granting the discount. This
conclusion, however, does not resolve the problem present-
ed herein for I cannot conclude on the record before me
that Roberts was discharged for any reason other than her
error and Respondent's belief, based upon the evidence
before it, that it was something other than an honest
mistake . Respondent is one of the nation's largest retail
concerns. Throughout the country it maintains a strict
policy in regard to abuses of its employee discount
privilege. Though no evidence was adduced, it is obvious to
me, and I take notice of the fact as a matter of common
knowledge, that intentional abuses of the discount privi-
lege, like shoplifting, could amount to very substantial sums
of money and add appreciably to the cost of doing business.
It is thus understandable that Respondent would be rigid
in this area. Indeed, the evidence reveals that discharge
swiftly followed discovery of other such abuses in the
Orlando store. I do not deem it significant that the others
who were discharged for such activity may have been more
directly involved with or related to their customers.
Respondent's rule does not specify that the employee must
have benefited from the sale before discharge would be
warranted. Similarly, while Cheryl Blythe received no
discipline for her failure to report the improper discount as
soon as it came to her attention, the Respondent's policies
do not require employees to spy one upon the other and
report such infractions. I note in addition to this, that the
discharge occurred more than 2 months after the start of the
union activity and the record does not reveal what, if any,
union activity was continued by Roberts or other employ-
ees after the initial solicitation activity.8 Accordingly, I
shall recommend dismissal of this allegation.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) of the Act by
coercing its employees in the exercise of their statutory right
to engage in union activities.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Respondent did not violate the Act by its discharge
of Janis M. Roberts or in any other manner not specifically
found herein.
REMEDY
In order to remedy the unfair labor practices found
herein my recommended Order will require Respondent to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Upon the foregoing findings of fact and conclusions of
law, and the entire record herein, and pursuant to Section
10(c) of the Act, I hereby recommend the following:
ORDERS
Respondent, Montgomery Ward & Co., Incorporated,
Orlando, Florida, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Promulgating a no-solicitation rule for the purpose of
discouraging union activities.
(b) Creating the impression that the union activities of its
employees are under surveillance by management.
(c) Promising or implying that employees will be pro-
moted to supervisory positions if they cease their union
activities.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights
guaranteed by Section 7 of the National Labor Relations
Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its place of business in Orlando, Florida,
copies of the attached notice marked "Appendix." 10 Copies
of said notice on forms provided by the Regional Director
of Region 12, after being duly signed by an authorized
representative of Respondent, shall be posted by Respon-
dent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
8 Roberts testified that her supervisor, Teague, referred to her as the store
"instigator" when introducing her to others The context in which that
appellation was attached to Roberts, and the period when it was so used by
Teague, is not reflected in the record
9 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
io 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 "