Montgomery Ward and Co., Inc.

National Labor Relations Board - Board Decisions

Sep 15, 1965

154 N.L.R.B. 1197 (N.L.R.B. 1965)

MONTGOMERY WARD AND CO., INCORPORATED 1197
Montgomery Ward and Co., Incorporated and Retail Clerks In-
ternational Association , AFL-CIO. Case No. 13-CA-5743.
September 15,1965
DECISION AND ORDER
On August 31, 1964, Trial Examiner Thomas A. Ricci issued his
Decision in the above-entitled proceeding finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent and the General Counsel filed excep-
tions to the Trial Examiner's Decision together with supporting briefs.
Thereafter, the General Counsel filed a reply 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 powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Trial Examiner's Decision, the excep-
tions, and the briefs,' and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the modifications noted
below .2
As more fully detailed in the Trial Examiner's Decision, Respond-
ent and the Union arrived at a national agreement in August 1963.
This national agreement was submitted for ratification to employees
at different stores, but not at the store locations in which decertification
petitions, inspired and fostered by Respondent, had been filed. As
found by the Trial Examiner with respect to the locations where the
contract was submitted to a ratification vote:
Wherever the ratification votes were favorable, most of them
towards the end of August, [1963] the substantive terms of the
new agreement were put in effect immediately, although the con-
tract itself was not signed until later. In those situations where
the existing contract did not expire until later, the economic
'As the record, including the exceptions and briefs, adequately sets forth the issues
and positions of the parties , Respondent 's request for oral argument is hereby denied.
2 We find Respondent 's layoff of employees for refusing to answer questions pertaining
to statements to Board agents or to unfair labor practice charges against Respondent to
be violative of Section 8(a) (1) of the Act but we need not pass upon the Trial Examiner's
additional finding that such conduct was also violative of Section 8(a) (4). Louisiana
Manufactunnq Company, 152 'NLRB 1301, footnote 5. We also find that employees
were unlawfully polled at Topeka as well as at the stores found by the Trial Examiner.
Also, as maintained by the General Counsel in his exceptions , more than 50 percent of
those at LaGrange were dues paying members of the Union at the critical time,
154 NLRB No. 100.
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terms-i.e. those not related to union security-were also given,
then and there, and the remaining provisions put in effect when
the replacement contract was executed.
At the stores where decertification petitions had been filed, the Re-
spondent unlawfully polled the employees at most of those stores
during the latter part of August as to whether they wished to be
represented by the Local which was their bargaining agent. Where
the employees voted against the Union, the employees were rewarded
with the benefits of the national agreement effective as of September 1,
1963.
The Trial Examiner recommended, inter alia, that Respondent be
ordered to bargain collectively with the local unions representing the
employees at the locations listed in Appendix A of the Trial Exam-
iner's Decision; at virtually all these locations, Respondent's refusal
to bargain followed the filing of decertification petitions. The Trial
Examiner proposed further that the economic benefits of the national
agreement which Respondent instituted at the stores where the employ-
ees voted against the Union in its unlawful polling of employees be
placed in effect at the stores where the employees voted for the Union,
effective as of the same date when the former group received them,
namely, September 1, 1963.3
The General Counsel and the Union contend that the Trial Exam-
iner's Recommended Order does not adequately remedy the unfair labor
practices found herein. They maintain that the Respondent should
be ordered to submit the national contract agreed to in August 1963
to the employees at the locations listed in Appendix A of the Trial
Examiner's Decision and, where ratified, that Respondent be directed
to execute the contract. In addition, it is argued, Respondent should
be ordered to make the benefits of the national agreement available at
all locations where Respondent unlawfully refused to bargain,-' retro-
active to June 1, 1963, which is when the benefits were given to the
employees represented by the Teamsters whose new contract with
Respondent became effective and to the employees at nonunion stores.
We agree that some revision of the Trial Examiner's Recommended
Order is appropriate in the circumstances of this case. Clearly, but
for the unlawfully instigated and assisted decertification petitions, all
the stores represented by the Union would have had the oportunity to
ratify the national agreement. Respondent's refusal to extend that
opportunity to the employees where decertification petitions had been
3A provision to this effect was inadvertently omitted from the Trial Examiner's
Recommended Order. As appears hereinafter , other provision is being made for these
locations
' The stores are listed in Appendixes A and B of the Trial Examiner 's Decision.
MONTGOMERY WARD AND CO., INCORPORATED 1199
filed was an integral part of its unlawful efforts to undermine the
Union. Plainly, Respondent was thereby seeking to convey to the
substantial number of employees involved that it alone was respon-
sible for the contractual benefits and that the Union was an obstacle
to their attainment. A mere bargaining order would hardly remedy
the effects of Respondent's unlawful conduct here. With respect to
the Punxsutawney, lft. Vernon, Chico, and DuBois locations, where
the employees voted to ratify the national agreement but where the
Respondent refused to execute a contract following the filing of de-
certification petitions, the Trial Examiner was of the view, as are we,
that "effective remedial action requires that the contract be executed,
else once again the illegal objective of depriving the Union of any
credit in the eyes of the employees for benefits regularly negotiated in
collective bargaining will have been successfully accomplished." 5
Precisely the same consideration requires that the national agreement
be submitted for approval to the employees at the locations listed in
Appendix A and Appendix B ° who were denied the opportunity to
vote on this matter because of pending decertification petitions, and
whose Local did not subsequently execute a contract. Where ratifica-
tion is voted, Respondent shall forthwith execute the national agree-
ment. We shall so provide. And in the circumstances recited above,
we also deem it necessary to undo the coercive effects of Respondent's
antiunion activities to order that, where ratification is voted, or where
contracts at the aforementioned locations have been executed without
retroactive application,? Respondent institute the improved conditions
of employment called for by the national agreement retroactively to
September 1, 1963.8
F We find merit in the General Counsel 's exception that at Alamosa , Colorado , as at the
named four stores, the employees voted to ratify the national agreement but the Respond-
ent thereafter refused to execute the contract because of the filing of a decertification
petition In the circumstances, we shall also require Respondent to execute the national
agreement at Alamosa
o Regarding the stores listed in Appendix B, except for Punxsutawney , Mt. Vernon,
Chico, and DuBois, the General Counsel requested no affirmative bargaining at those
locations and none was entered by the Trial Examiner . However, the General Counsel
has requested the retroactive granting of benefits to all locations and we believe that no
distinction should be made between the stores insofar as our modification of the Trial
Examiner' s Recommended Order is concerned. For example , no warrant appears for
any different treatment of Modesto and Woodland in Appendix B.
V At San Luis Obispo, Maryville, Muskegon, and Butler , where the employees expressed
approval of the Union in Respondent's unlawful polling of them, contracts were later
executed but, as found by the Trial Examiner, "all the advantages , including both the
company benefits spoken of in May and the terms negotiated with the International, are
being withheld to this day."
8 We shall also require that the benefits of the national agreement be placed in effect at
Alamosa upon the signing of the national agreement effective as of the date they would
have been instituted but for the filing of the decertification petition there . See footnote 5,
supra At Punxsutawney , Mt. Vernon , Chico, and DuBois, where Respondent also refused
to execute the national agreement ratified by the employees because decertification peti-
tions were filed, the benefits were granted the employees.
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that the Respondent, Montgomery Ward and Co.,
Incorporated, its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recommended Order, as
so modified :
1. Add the following as paragraph 2(b) to the Trial Examiner's
Recommended Order, the present paragraph 2(b) and those subse-
quent thereto being consecutively relettered :
"(b) Submit the national agreement, reached in August 1963, to
the employees for ratification and, in stores where such agreement is
ratified, execute forthwith the national agreement, and institute the
benefits of the national agreement retroactive to September 1, 1963,
under the conditions and in the manner set forth in the Decision
above."
2. Delete the name of the Alamosa store from Appendix A and add
the following as paragraph 2(d) to the Trial Examiner's Recom-
mended Order, the present paragraph 2 (d) and those subsequent
thereto being consecutively relettered :
"(d) If requested to do so by Local 7 at Alamosa, sign forthwith
the full contract, agreed upon in August 1963, between the Retail
Clerks International Association, AFL-CIO, and the Respondent and
ratified by the Local, and deliver two copies thereof for each bargain-
ing unit to the Local. Also, institute the benefits of the national agree-
ment retroactively as provided for in the Decision above.
"If no such request is made, then, upon request, bargain collectively
with Local 7 as the exclusive representative of the employees in the
appropriate unit at Alamosa, and embody any understanding reached
in a signed agreement."
3. Insert the name of the Alamosa store after "Mt. Vernon (Illi-
nois)" in paragraph 2(e) of the Trial Examiner's Recommended
Order.
4. Add the following sentence to the first indented paragraph of
Appendix D of the Trial Examiner's Decision :
Upon execution of the contract at Alamosa, we will institute the
benefits of that agreement retroactively as provided for in the
Board's Decision.
5. Footnote 1 of Appendix D is amended to read as follows :
The Regional Director will insert at this place in the notice the
appropriate local union designation; i.e., Local 876, 1179, or 7.
MONTGOMERY WARD AND CO., INCORPORATED 1201
6. Insert after the first substantive paragraph of Appendix C 9
and Appendix E of the Trial Examiner's Decision the following
paragraph:
WE WILL submit to local unions representing employees of stores
for which we refused to bargain upon the filing of decertification
petitions, for ratification, the national agreement of August 1963,
and upon ratification, forthwith execute such national agreement,
and institute the benefits of the national agreement retroactive to
September 1, 1963, under the conditions and in the manner set
forth in the Board's Decision.
o The telephone number for Region 13, appearing at the bottom of the Appendix at-
tached to the Trial Examiner's Decision, is amended to read: Telephone No. 828-7597.
TABLE OF CONTENTS OF A TRIAL EXAMINER'S DECISION
Page
Statement of the Case ----------------------------------------------- 1201
1. The business of the Respondent-----------------------.---------- 1202
II. The labor organization involved-----------------------.---------- 1202
III. The unfair labor practices------------------------------------- 1202
The Refusal to Bargain---------------------------------------- 1202
A. The principal issue---------------------------------------- 1202
B. Appropriate units and majority status------------------------- 1203
C, Evidence relating to the main issue ---------------------------- 1204
D. Analysis, subsidiary related facts, and conclusion---------------- 1238
N. The effect of the unfair labor practices upon commerce---.---------- 1262
V. The remedy-------------------------------------------------- 1262
Conclusions of Law------------------------------------------------- 1266
RECOMMENDED ORDER----------------------------------------- 1267
Appendix A------------------------------------------------------- 1268
Appendix B------------------------------------------------------- 1268
Appendix C------------------------------------------------------- 1269
Appendix D------------------------------------------------------- 1270
Appendix E------------------------------------------------------- 1271
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding started on July 12, 1963, when the Retail Clerks International
Association,' herein called the International, or the Union, filed its original charge
with the Board's Regional Office in Chicago, Illinois, against Montgomery Ward and
Co., Inc., herein called the Respondent or the Company. This charge was filed by
the International on behalf of its Local 300. Thereafter the International filed a
number of amended and supplemental charges, each on behalf of various of its desig-
nated locals, in a number of locations throughout the country and with diverse
regional offices of the Board. A hearing upon the complaint before Trial Examiner
Thomas A. Ricci opened at Chicago, Illinois, on October 28, 1963, on a compre-
hensive amended complaint issued by the Chicago Regional Director on October 14,
1963, and upon answer filed by the Respondent.
For the convenience of witnesses and of the parties, the hearing proceeded for a
number of months at successive locations and closed on May 20, 1964, after testimony
and exhibits had been received during 59 hearing sessions in 30 cities. The basic
issue litigated is whether the Respondent violated Section 8(a)(5) of the Act. In
the course of the extended hearing there were a number of amendments to the
complaint, most of them concerned with conduct of the Respondent's agents and
1 At a number of locations to which the hearing progressed additional lawyers from
time to time entered appearances and participated ; also at times officials of locals of the
International Union noted their appearances.
206-446-66-vol. 154-77
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representatives occurring after July 1963, and alleging further violations of Section
8(a)(5), and, in addition, separate violations of Section 8(a)(1), (3), and (4) of
the Act.
After the close of the hearing briefs were received from the General Counsel and
from the Respondent.
Upon the entire record, and from my observation of the witnesses, I make the
following findings:
1. THE BUSINESS OF THE RESPONDENT
Montgomery Ward and Co., Inc., a corporation organized under the laws of
Illinois, is engaged in the sale and distribution of merchandise throughout the United
States and foreign countiies at over 800 retail stores and mail-order houses. Its
principal office is at Chicago, Illinois. This proceeding directly involves 39 of its
separate business locations. In the course of its business operations, during the year
ending July 1963, the Company sold and distributed products valued in excess of
$2 million, and received goods valued in excess of $50,000, at each of the separate
locations involved, transported to such locations in interstate commerce directly
from States of the United States other than the State in which each of these business
places is located.
I find that the Respondent is engaged in commerce within the meaning of the Act
and that it will effectuate the policies of the Act to exercise jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The record shows and I find that Retail Clerks International Association, and each
of its locals involved in this proceeding, are labor organizations within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Refusal to Bargain
A. The principal issue
The essential allegation of the complaint is that the Respondent illegally refused
to bargain with the Union in 38 of its stores located in various parts of the country.
In these, and others of its catalogue and retail stores, the Respondent had for some
time recognized the Union, through a number of its locals, and in 1963 there were
collective-bargaining agreements in effect in about 80 stores, virtually all due to
expire on June 1 Both before and after that critical date, management and union
representatives met, on national and regional bases, exchanged proposals and counter-
proposals, and discussed their conflicting demands at considerable length.
While these meetings were taking place, movements to unseat the Union developed
in 37 stores, and there came a time when, in one way or another, the Company with-
drew recognition from the respective local union involved and refused to continue
bargaining. The complaint alleges that the widespread activities to decertify the
Union were instigated by the Respondent, that they were encouraged and nourished
by the Company in order to accomplish a preconceived plan to alter conditions of
employment unilaterally, and that the Company advanced the ostensible question
concerning renresentation seemingly raised by these disaffection petitions to lend a
colorable justification to its outright refusals to bargain in the end. All of this, it is
alleged, proves that the discussions that were simultaneously being carried on with
the union agents constituted only a sham to cover an underlying and ulterior objective
to avoid the basic duty to bargain with the majority representative in good faith as
the statute requires
There is no contention that the discussion sessions between union and company
agents, including the written proposals exchanged, in themselves indicate evasion or
deceit. It is conceded that on the surface these meetings comported with the require-
ments of normal collective bargaining. The theory, rather, is that all of the conduct
of the Respondent's officials, including these meetings and what went on locally at
the widely dispersed store locations. and particularly the time elements tying together
the more significant events, establish a pervasive bad faith in the Respondent's entire
course of conduct, a purpose to bypass the chosen bargaining agent in its dealings,
with the employees, and a deliberate refusal to accord the Union the truly representa-
tive status which, under the scheme of Section 8(a) (5) of the Act, it was entitled to
exercise.
The answer denies any intent by the Respondent to avoid its obligation to deal with
the majority representative of its employees wherever and whenever a union local
enjoyed such exclusive agency. The Company disclaims all responsibility for the
MONTGOMERY WARD AND CO., INCORPORATED 1203
antiunion activities of the employees and asserts that in each instance where it with-
held recognition it was only after, and because of a real and substantial question
raised by the employees themselves on whether or not the local union continued to
command majority adherence
Within this broad statement of the main issue presented for decision, the parties
advanced more precise and detailed contentions that will be explained and considered
below.
B. Appropriate units and majority status
The complaint is concerned with 39 separate stores, each with its own appropriate
bargaining unit. The General Counsel asks for a finding that the refusal to bargain in
violation of Section 8(a)(5) of the Act occurred in each of these locations except
Baker, Oregon, where only a violation of Section 8 (a) (1) is alleged As in all cases
alleging violations of this section of the Act, a necessary preliminary finding must
establish the exact bargaining unit and the exclusive majority status of the Union at
the time of the alleged refusal to bargain.
At none of the locations involved was any issue raised respecting the correct com-
position of the bargaining unit, in each instance it was clear that the General Counsel
and the Respondent were in agreement as to what the appropriate unit was during
May, June, and July, the critical period All the units were initially established as
basic elements of Board-conducted elections and set out in resultant Board certifica-
tions. At two of the stores-Richmond and Chico, both in California--the local
unions were certified in 1962, and no contracts were ever signed. In each of the
other 36 stores there were in effect during May 1963 regular collective-bargaining
agreements, of which 32 were due to expire on June 1, and the other 4 at a later
date: Sacramento, California, November 1, 1963; Salisbury, Maryland, January 8,
1964; Pueblo, Colorado, February 15, 1964, and Pittsburg, California, May 5, 1964.
In the absence of any issues raised on this formal and technical aspect of the pro-
ceedings, it would unduly burden this report to set out here verbatim for each of the
38 locations a description of the bargaining unit They are set out without chance of
disagreement in the 36 contracts then in effect or in the certificates applicable to Rich-
mond and Chico. It is accordingly found that the units described in the contracts
applicable to the 36 stores and in the Richmond and Chico Board certificates consti-
tute units appropriate for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act
The fact of majority status, and the local Union's right to represent all of the employ-
ees in each of these 38 bargaining units during the summer of 1963, is proved in sup-
port of the complaint by virtue of the presumption of continuing majority which has
long been recognized by Board law as arising from the existence of a proper collec-
tive-bargaining agreement or a valid Board certification 2 In each instance where
there was a contract in effect, the Respondent bargained with the Union before its
expiration, largely during the months of April and May 1963. Moreover, it continued
such recognition and bargaining even after most of the agreements had expired, and
did not withdraw recognition until the month of July At no time during all that
period did the Respondent question any local union's majority status It was only
after decertification petitions had been filed in virtually every location that the
Respondent raised any issue directed to the Union's right to speak on behalf of the
employees.
At a number of the locations, during the hearing, Respondent's counsel asserted
that the particular local union in fact did not, at the time of the refusal to bargain,
enjoy majority-iepresentative status. He said there was, or would be proof of this
assertion sufficient to rebut the presumption of continued majority. This contention
was repeated as an integral pait of an argument that in any case alleging a refusal to
bargain, if it could be shown by the employer that a union in fact was not authorized
by a majority of the employees, no finding of illegal refusal could be made, regardless
of the employer's antiunion activities otherwise proscribed by the Act. Assuming,
but not deciding the correctness of this position as a matter of law, there is presented
the question whether there is sufficient probative evidence in this case to offset the
presumption favorable to the complaint
A seemingly separate and broader contention is also advanced in defense to the
entire complaint. The Respondent contends that the refusals to bargain were grounded
upon an honest and reasonable doubt as to the majority status in each instance, and in
2 Celanese Corporation of America, 95 NLRB 664; Servette, Inc., 133 NLRB 132, 136:
We presume, in the absence of evidence to the contrary, that the Respondent's rec-
ognition of the Union was Lawful, and, therefore, that the Union was the majority
representative when recognized and during the term of the contract.
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
support of that assertion it points to certain oral testimony, documents, and factual
stipulations between the parties. In large measure the evidence said to support this
second contention is the same testimony or documentary proof advanced as effectively
rebutting the presumption of majority status during the critical period. The two argu-
ments-no majority in fact and reasonable grounds for refusing-are so interwoven
that intelligent appraisal of each apart from the other would be virtually impossible.
Certainly, separate treatment of the two defenses articulated would compel extended
repetition of many portions of the evidence and of the Respondent's arguments. More-
over, appreciation of the character of the proof said to support these two arguments,
and of the probative value of much of the oral testimony by both employees and man-
agement representatives, can only be made with a due consideration of many other
related facts appearing on the record and of the timing of the major events.
The attack upon the majority status, to the extent that there is any probative evi-
dence at all worthy of consideration, is limited to 17 different locations. I deem
totally unsupported statements of opinion or conclusions as to a particular union's
strength or employee sentiment, even though voiced from the witness stand, not worthy
of consideration or discussion at this point. At none of the remaining 21 stores listed
under the Section 8(a) (5) allegations of the complaint was any such evidence offered.
Accordingly, it is hereby found that at each of the following locations the respective
local set opposite the location, by virtue of Section 9(a) of the Act has been and is
now the exclusive representative of all the employees in the previously indicated units
for purposes of collective bargaining in respect to rates of pay, wages, hours of
employment, and other conditions of employment:
Local Local
Butler____________________ 1407 Merced_______________________ 170
DuBois___________________ 1436 Sacramento ------------------- 588
Punxsutawney_____________ 1436 Anchorage____________________ 1496
Muskegon_________________ 807 Spokane______________________ 1439
Pueblo___________________ 24 Longview_____________________ 148
La Junta__________________ 7 Portland...................... 1257
Las Vegas________________ 1564 Pittsburg---------------------- 1179
Madera___________________ 170 San Jose______________________ 428
Modesto__________________ 588 Mt. Vernon------------------- 806
Woodland_________________ 588 Salisbury --------------------- 692
San Luis Obispo___________ 899
C. Evidence relating to the main issue
Broadly classified, the facts which must be deemed pertinent to the basic question
of whether the Respondent engaged in conduct prohibited by the statute fall into two
distinct and separate areas One set of facts details the meetings and the discussions
which took place between management and union, where proposals were made, argu-
ments exchanged, some concessions offered, agreement reached as to some items, and
finally recognition withdrawn as to a number of stores. The General Counsel offered
some of this evidence because withdrawal of some stores from the bargaining was
announced by the Company at certain meetings, and because it also reveals the dis-
parate treatment of the Retail Clerks as against the Teamsters Union by the Respond-
ent. The Respondent's witnesses related many details of these meetings, of the
multitudinous proposals and counterproposals, even including arguments made by the
participants for or against a great many contract modification demands. Its purpose
was to prove that in fact it did bargain, and thereby refute the literal allegation that
there was a "refusal" to bargain. There is a minimum of meaningful dispute over
these meetings and discussions.
The second area of factual evidence covers activities of the Respondent in the 39
stores in question, things that were said to employees, acts of management represent-
atives relating to the decertification proceedings, and elections held by the Company.
These activities, revealing management's direct contact and dealings with the employ-
ees at the same time that it was ostensibly negotiating with their collective-bargaining
agent, are the substance of the General Counsel's case in support of the complaint.
This evidence again is of two kinds. One proves the conduct of management agents
pursuant to direct instructions from the labor relations department in the main office,
statements read to store employees by emissaries from Chicago, documents prepared
in the main office for use in the many stores and distributed at the locations, and posted
in those stores. As to all of this, there is no dispute, for the story was told by Richard
Scheidt, labor relations director and chief counsel of the Respondent at the hearing.
s At this location Local 1257 of the Retail Clerks was certified , and remained as bar-
gaining agent, jointly with Local 255 of the Teamsters International Union.
MONTGOMERY WARD AND CO., INCORPORATED 1205
He produced documents prepared by the Company and used in the stores to reach the
employees directly,
The remaining portion of the evidence said to support the complaint deals largely
with the activities of local management representatives , such as store managers , assist-
ant store managers, regional operations managers, regional personnel directors, etc.
Unlike the activities expressly ordered from Chicago, and conceded by the Respond-
ent, which were uniform throughout the stores, these local incidents varied from store
to store. It was for this reason that the hearing of necessity extended to 30 cities.
The proof in this area was elicited almost entirely from reluctant witnesses, including
many store managers examined pursuant to section 43(b) of the Rules of Civil Pro-
cedures, and decertification petitioners who were clearly hostile to the General Coun-
sel. Much of the testimony was extracted from witnesses after confrontation with
earlier sworn statements . In some instances this area of proof presents credibility
issues.
1. Activities planned in the Respondent's central office and uniformly carried
out in the stores
In 1962 purely for economic reasons, the Company decided to make major changes
in the insurance , retirement , and vacation benefits of its employees , and to institute
a savings plan tied to the new retirement system and a stock-purchase program. This
new structure of employee benefits is very complex and detailed, its application vary-
ing with employee status, length of employment, and job classification. During the
early period, when the Company was publicizing its intention and laying the founda-
tion for a favorable reception of the program by its overall employee complement, the
revised benefits came to be called "the three giant steps," or the new "company bene-
fits." Precisely in what respects or to what extent the new benefits gave employees
advantages not previously enjoyed, was not made clear on the record, and for pur-
poses of understanding and appraising the questions to be decided here, there is no
need to analyze them in every refinement . It does appear at least, among other things,
that in some cases vacation privileges were extended, that employee contributions
towards insurance costs were reduced, that insurance benefits were in some respects
increased, and that over the years the employer would make contribution towards
employee stock purchases. It is clear that, regardless of their exact value, the "com-
pany benefits," as a whole, came to be viewed by the employees as an improvement
in working conditions
The Company's original plan was to place these benefits in effect in 1962, but it
decided first to negotiate the matter with the Teamsters International Union, whose
locals represented more employees than did the Retail Clerks. Negotiations with
the Teamsters were delayed and it was not until April 9 that agreement on a new con-
tract for all those stores was reached.
After a certain amount of advance drumbeating about the planned innovations, the
first steps were taken to advise the employees directly of the details of the new bene-
fits. For this purpose the Company prepared a printed 40-page script to be read to the
employees in each store, a number of slides to be shown by projector during each talk,
and three printed booklets for individual distribution covering minute aspects of the
"three giant steps."
Regular training sessions were held to prepare the speakers-called conference
leaders-for these presentations . In all instances high company representatives, such
as regional merchandising directors, personnel directors, labor relations department
men, always superior to the management hierarchy in any of the local stores, were
used. They visited the stores on schedule; the talk, following the printed script,
required about an hour and a quarter. In some stores it was given once, to all the
employees assembled ; in others , the larger stores, the talk was given several times, on
occasion as many as 15 times over a few days, with the employees called together in
groups.
The speeches were given in all of the nonunion stores and in all Teamsters loca-
tions during April, and all of these employees were assured the benefits would become
effective on June 1. On that day the renewed Teamsters contract took effect, and the
benefits in fact were given in these and all nonunion stores.
The Respondent's first approach to the Retail Clerks on this subject came early in
1963 when , through high union officials, it suggested early negotiation . Regular
negotiations , or comprehensive discussion of contract proposals both ways , started in
April, mostly for the west coast stores in that month , and continued in May in
several cities, each for a regional group of Retail Clerks stores . By mid-May no
agreement had been reached and the Respondent decided to present its benefit pro-
gram directly to the employees represented by this union also. For the most part the
same speakers were used, management representatives superior to store level super-
visors. Also the same 40-page script was used as elsewhere . To adjust for the fact
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that there was a collective -bargaining agent in these stores , a special supplement
three-page script was prepared to be read by the speaker in advance of the regular
exposition of the benefits. The additional statement was written by Scheidt, the labor
relations director, on May 15. The purpose of this extension of the benefits speech
was to inform the employees that while the benefits were definitely going to be placed
in effect in the Teamsters and nonunion stores on June 1, here. because there was a
union, the employees would not receive them until agreement had been reached with
their bargaining agent.
Two days before drafting this supplemental script for the Retail Clerks stores,
Scheidt also wrote, or had prepared under his immediate supervision, a three-page
document entitled "Decertification Elections," with a number of attachments. This
document will hereafter be called the decertification brochure. One of the attach-
ments was a copy of the decertification petition form used by the Board, with the
name of the employer, type of establishment, principal product, and description of
bargaining unit filled in. There was also attached a listing of each of the separate
stores where the Retail Clerks was then being recognized, and a list setting out the
name, office address, and the telephone number of the Board Regional Director for
each region in which Retail Clerk stores were located. The decertification brochure
itself set out in detail the procedural steps required for filing decertification petitions,
language to be used at the top of signature petitions in support (2 complete phrases
were suggested-1 of 11 words and another of 23 words), the percentage of employee
signatures necessary, the need of a date following each signature. precise information
as to the time when a petition could properly be filed with relation to the expiration
date of any collective-bargaining agreement.
This decertification brochure was put in the hands of each conference leader before
he set out to give the benefits speech.
The speech was given in all the Retail Clerks stores simultaneously throughout the
Company between May 20 and 25. Most of the time it was in the store proper; on
occasion the employees were gathered in a more convenient location nearby, such as
a bank, a hall, or at a hotel breakfast. In every instance steps were taken to assure
that all employees, including those not scheduled for work at the time, were in
attendance. All employees were paid for time spent listening
The speaker started each talk by reading the special script prepared by Labor Rela-
tions Director Scheidt It reads as follows:
My name is ------------------------ and I'm from -------- ------- --
And this is --------------------------- from ------------------------
who is going to assist me. I am sure you are all aware from the material in the
Company newspaper and the posters that have been displayed in the store about
our new Benefit Programs In fact they have been widely publicized outside the
Company by the daily newspapers, radio and T.V.
At all of the other Company locations, meetings such as this meeting today
have been held for the purpose of explaining these improved benefits the employ-
ees will receive. Within a few days all the other employees will have been
enrolled in the new plans except at locations where employees are represented
by the Retail Clerks Union
These new programs will go into effect on June 1, but, unfortunately, it appears
this cannot be done at this store. The reason for this is that the law requires us
to negotiate these new plans with the Union that represents you, before the plans
may be put into effect here. As yet there is no agreement with your Union that
will enable us to make the program effective in this store.
There are unions other than the Retail Clerks Union that represent some of
our employees. These other unions have enthusiastically accepted our new
Benefit program. As a result, the only locations where the new programs will
not go into effect on June 1 are those where the Retail Clerks Union represents
employees.
In order to insure that all employees would receive these benefits on June 1
many months ago we approached all unions that represent any of our employees
This was true not only at locations where the contracts expire on June 1 but even
at locations where the contracts have another year or so to run.
As early as January 10 of this year, the Company's Labor Relations Director
reviewed these new programs with officers of your international union in Wash-
ington . The Company requested that negotiations be commenced immediately
and offered to be available at the union's convenience.
On February 14, a meeting was held with the entire Executive Board of the
Retail Clerks Union during which the details of the new Benefit Program were
furnished . Again , the Company requested negotiating meetings to be arranged.
MONTGOMERY WARD AND CO., INCORPORATED 1207
We have been extremely disappointed in the attitude of the Union. While
meetings were held with other unions, it was not until April I that any meetings
were held with the Retail Clerks Union and this was only for a group of Cali-
fornia stores and several other locations. Subsequently some other meetings
were held, but as of today, we have no agreement that will permit us to make
the program effective at all Retail Clerk locations. This is true despite the fact
that no real objection has been made to the employees of the new Benefit
Program.
We sincerely believe you should not be deprived of these new benefits. As far
as we are concerned, you are Ward employees, not Retail Clerks Union employ-
ees. Nonetheless, under the law we have to deal through your Union and
legally we cannot make these programs effective here until some understanding
is reached.
We do believe these new benefits will apply to you even though it may not be
now. Because of this and because we believe you have a right to know what the
Company wants to do to improve your security, we shall explain the new benefit
program today. We do recognize our bargaining obligation and will fully nego-
tiate on the terms of any contract with the Union, including the terms of these
programs. It is our sincere hope that these programs as explained today will be
effective here within the very near future.
During the next 45 minutes or so we are going to view a film which highlights
what these Giant Steps are and how they affect us and our families.
But before we start, let's take a moment or two to look at our present benefits.
They are important to all of us. They provide help when we are sick or injured-
protection for our families when we die-and a lifetime income when we
retire. To date, our benefit plans have paid out millions and millions of dollars
to Ward employees and their families. They offer all of us protection and
security-in addition to our pay.
Wards believes in benefits In fact Wards invented group life insurance way
back in 1912. Our benefit plans have been revised many times since then-
always to give you and your families moie and better protection. Last year we
decided to make some new changes-to better fit the needs of all of us. Although
the plans we have now are good ones, we can't stand still.
There was also placed into evidence the 40-page conference leader's script explain-
ing the benefits themselves. It consists of a very detailed statement of the retirement,
pension and stock-purchase plan. The covering page says it is a "suggested" script,
and that it "is not intended to be read verbatim. Instead it should be put into your
own words . . ." The instructions also stressed the importance of "audience participa-
tion" and invitations to questioning. At several places throughout the script the
speaker is reminded to call for questions from the employees
At the close of the speech again a substitute last page was used to adjust to the
existence of a bargaining agent in the store In place of the closing statement used in
nonunion stores elsewhere, which served to distribute printed explanatory booklets
on each of the three major benefits as well as enrollment cards to the employees, here
the speaker ended with telling the employees they could see the booklets by going
directly to the store manager, and his virtually last statement was: "Now, how about
more questions?"
On June 4 there was prepared at Chicago a one-page document entitled "Union
Security Provisions-Retail Clerks Locations," over the signature of the labor rela-
tions director. It was addressed to "store managers" and distributed to them. The
statement advised the employees that as their union contract had expired on June 1
they were no longer required to join the Retail Clerks Union, because the union-
security provision was no longer in effect. It also said: "Any employee who is now
a member of the Union and who wishes to withdraw from the Union may legally
do so." It went on to say that dues deductions, where authorized, would continue
.. temporarily. However, unless a contract is agreed to in the near future, we shall
promptly discontinue this practice " In a number of the stores named in the com-
plaint this notice was posted on the bulletin board.
In virtually every store where the benefits speech was given questions were asked
by employees seeking information on how to obtain the benefits quickly and how to
"get rid" of the Union. The extent and character of the assistance given them by
management representatives towards carrying forward decertification movements,
and of the participation by supervisors in these activities, are reflected in the next
section of this report under the heading "Store Activities."
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Store activities
As in every case bottomed upon a theory of overall bad-faith conduct, the record
here reflects countless details of what a great many company representatives said and
did in relation to the decertification activities, descriptions of office space and prox-
imity of employee stations with respect to managers ' locations, precise minutiae of
information and assistance given by company agents to employees in preparing and
circulating signature lists and petitions, and even gestures and hand signals among the
people in the many stores while all this activity was going on. Part of this evidence
is significant and very revealing as to the Respondent's purpose. Much of this mass
of evidence is literally relevant and may afford some slight cumulative indication of
the underlying motive, but is not of substantial value, particularly in view of the other
clear and meaningful facts of the case. Necessarily the report of a Trial Examiner
in a case of this kind cannot and ought not repeat all that appears in the record;
indeed much testimony was received only because there was no way of evaluating,
in advance of its offer, the relative weight it would eventually have. There is set
forth below, therefore, only those facts that can be said truly to shed a revealing light
of the principal issues, and the selection of what merits discussion in this decision
was dictated by the exercise of a necessary discretion and fair appraisal of the record
as a whole. (For precedent, see Jacobs Manufacturing Co., 136 NLRB 35, 44.)
La Grange, Illinois- Nolan, regional personnel manager, gave the benefits speeches
here on May 22 and 23 to five separate employee groups. He had received the
decertification brochure a week before and had read it; he gave it to the store manager
before speaking. Each meeting lasted 11/4 hours and Nolan went out of his way to
invite questions as he spoke. During his first speech, starting at 9 a.m , employee
Paul Tuskey asked "if the benefits could go into effect if the employees dropped away
from the Union." Nolan told Tuskey to ask the store manager. A similar question
was asked by another employee in one of the later meetings. At 10 a.m. that same
morning Tuskey went into the office of Merchandise Manager Jarrett Thomas and
asked "if there was some way that he could get rid of the Union," and Thomas replied
"only ... through a decertification of the petition ... by a decertification petition."
Tuskey asked "how to go about doing it," and the manager told him to " get the names
of the people in the store . . . where the Board was, and the address . . . to get the
names of the people and have them sign." Thomas also advised Tuskey to sign up
30 percent of the employees, and to have the signatures dated.
Later, still the same day, and as Nolan continued to give his talks, Tuskey and Pat
Barry, another employee, started to seek signatures to an antiunion petition. They
solicited in the store, in the selling areas, during working hours; Tuskey did not testify
but a number of employees said that he solicited them during working hours. They
obtained 32 signatures by May 24; Manager Thomas knew the petition was being
circulated in the store for Tuskey went to his office to talk about it, told Thomas how
many names he had up to that point, and asked were they enough. Thomas told him
what he thought. The manager also admitted, while testifying, that he knew of
Barry's like activities.
On June 4 or 5 the manager posted on the store bulletin board the main office notice
announcing the employee's right to withdraw from the union and to stop dues deduc-
tions because the current contract had expired.
On June 11 Tuskey and Barry left the store during working hours without punching
their timecards to go to the Board's Regional Office in Chicago to file a decertification
petition; they were absent about 11/2 hours. The manager and their immediate super-
visors knew they had left and Barry's direct superior knew the girl had gone to the
Regional Office and why. On June 13 Barry and an employee named Yoder left work
again for over an hour to visit the Board's office. Although the store manager later,
at least, learned where these employees had been during these absences, all three were
paid in full for time away from their work on these two occasions.
After her petition had been filed Barry was advised by the Regional Office that the
signatures on the supporting petition were not sufficient. She proceeded, on June 18,
again with Tuskey assisting, to circulate a supplemental petition; she did this again
in the store, and of the 20 signatures she succeeded in obtaining during June 18 and 19,
a good portion signed up during working hours. Again the manager knew she was
circulating a petition in the store at that time.
Store Manager Thomas testified unequivocally that there was a policy in effect in
the store against union solicitation during hours.
Joseph Ungari, secretary-treasure: of the local union, testified credibly that on
June 8 he and two other union officers were at the store speaking to employees. They
were told by both Manager Thomas and Operating Manager Knight to leave the
store , and were not permitted to talk to the employees in the selling areas; they left as
ordered . Thomas recalled having ordered these people to discontinue their solicita-
MONTGOMERY WARD AND CO., INCORPORATED 1209
tion ; he testified his orders were limited to preventing the union officers from soliciting
employees during their working time. He admitted, however, having seen one of the
officers speaking to employees on business matters on another occasion, and that he
had never before asked any Retail Clerks official to leave the store.
The decertification petition was filed on June 11 and on July 17 the Respondent
refused to bargain further for this location.
Carlinville, Illinois: Nance, a district manager, gave the benefits speech here late in
May. She mentioned no union. Apparently realizing there had been an error, early
in June she returned to the store with Clement, a higher official, who proceeded to give
the corrected benefits speech, including that portion which advised that because the
employees were represented by the Retail Clerks, the benefits would not be placed in
effect at that time. Before Clement started to speak, and as the girls were gathering
to hear him, the store manager, Fraser, told employee Frances Ringer "to be sure and
ask how to withdraw from the union." Ringer did ask Clement "how we could get out
of the Union," and the reply was "we would have to file a decertification petition and
in some manner or fashion we would have to submit something with our signatures,
a majority of signatures ...." Ringer asked where she could obtain such a petition,
and Nance replied that the store manager would give it to the employees.
An antiunion petition was circulated and the signatures of practically all the employ-
ees of the store placed on it on June 25. At that time Fraser was on vacation, and
Helen Dowland, the credit manager at that time in charge of the store, circulated the
paper for the names. Dowland was also acting manager in August, when the com-
pany election took place .4 The decertification petition itself was typed up by employee
Hartley, who then placed it and the signature sheet in an envelope and asked Nance
to take care of it for her. The manager, using a company envelope, in her own hand
addressed the letter to the Board and mailed it.
The petition was filed on July 1 and on July 27 the Respondent refused to bargain
further for this location.
Marietta, Ohio: Van Angelo, a visiting manager, gave the benefits speech here on
May 21. When he finished employee Dore Hines spoke to him, saying: "I would like
to participate in the benefits and asked him how I could get the Union out of the store."
Van Angelo asked Hines to "see me tomorrow." On June 1 Hines asked the store
manager, Giniecki, "what I could do to get up a petition to get the Union out of the
store." The manager handed him the decertification brochure, and the employee made
notes from it. In the conversation Giniecki asked Hines "If I knew how many signa-
tures I needed and how I could get them." Hines prepared a signature petition fol-
lowing the phrasing suggested in the brochure. On the 3rd he circulated the petition
and obtained 14 signatures, at least 8 while the employees were at work. While he was
so engaged the manager asked him "if I had the petition going," and when Hines replied
that he did, suggested that he make a photostat copy of it. In due course Hines
received a decertification petition form from the Board's Regional Office and returned
with it to the store manager for assistance. Again the manager handed the employee
the decertification brochure, and this time Hines ripped off the petition form attached
and used it as a guide. During this conversation the manager said to him: "You are
going to complete it and return it, aren 't you?"
Rex Lowe, business agent of the local union, testified credibly and without contra-
diction that before June 1963 he had many times entered the store to speak to employ-
ees, with the privilege never being curtailed by management representatives. On
June 14 he came to check on the rumors of decertification activities and Assistant Store
Manager Lisi asked him, and Sherman, an accompanying union organizer, to go to the
manager's office. There the manager told them his orders "from the personnel office
in Chicago" were that the men were not to speak to the employees in the store and that
he would have them removed if they did not desist. Lowe also testified that in July he
was again ordered out of the store by Hoy, the new manager, who had replaced
Giniecki. According to Hoy all he told the union representative was that he was not
to bother the people at work, and he denied having ordered the men out of the store.
The decertification petition was filed by Hines on June 10 and on July 17 the
Respondent refused to bargain further for this location.
Butler, Pennsylvania: Store Manager Thompson received a copy of the decertifica-
tion brochure in the mail and District Manager Kerin gave the benefits speech in this
location on May 20. While Kerin spoke to the approximately 100 employees assem-
bled, an employee asked "what would happen if there were any other representation in
the store," and Kerin said he did not know, but, during the talk, advised employees to
see the manager if they had any questions about the benefits. Shortly before June 5
the manager received the Chicago announcement concerning the suspension of
• I find that at these critical times Dowland was a supervisor within the meaning of
the Act.
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee obligation to continue union membership or checkoff of dues. On instruc-
tions from the labor relations director the notice was posted at a number of places
throughout the store.
Manager Thompson testified that within a week after he posted this notice several
girls came to him to talk about it; two of them were Rose Nanni and Shirley Gal-
lagher, Gallagher asked him about decertifying the Union, and the manager
"described" the procedure to her. He gave the same full explanation to employee
Iman. On June 18 Gallagher wrote to the Board for appropriate forms and
received them. On June 20 she returned to Thompson again for help in preparing
the formal petition and this time he told her, as he recalled: "This is of no value until
she had done step one first ... you have to get the percentage of the employees to sign
the petition. The NLRB form is of no value unless you got that." He then told her
what to write at the top of a signature sheet, how many signatures she should obtain,
and to have them dated. He closed with saying that when she had done all this he
would help her to complete the final petition.
Both Gallagher and Nanni worked in the credit department, next door to the office
of the manager and the assistant manager, where Gallagher spends half her time typ-
ing and filing, some of it confidential. She went on vacation between June 22 and
July 7, but spent the second week in town. Between July 2 and July 5 she successfully
solicited about 40 signatures to an antiunion petition, all in the store, the warehouse,
or the garage. She said that while she was off duty, most of the employees were at
work when they signed. At this time Assistant Manager Hilliard was in charge of the
store because Thompson was on vacation. During her solicitation activities Gallagher
once sat in the manager's office and told Hilliard she was having difficulty obtaining
signatures because some employees feared discharge if they signed; he assured her
they had no reason to be afraid.
Hilliard was a very hostile and reluctant witness; on the extent of his knowledge
of Gallagher's activities in the store that week he testified, under pressure of extensive
cross-examination, that he had a "suspicion" the petition was being signed, "he
assumed" Gallagher was obtaining the signatures, "maybe" he told her the employees
would not be discharged. Hilliard's testimony set out here was drawn from him only
after painstaking and repetitive referrals to his earlier affidavit; his demeanor gave
to his every oral admission against interest the most probative value. Manager
Thompson testified unequivocally that there is a no-solicitation rule in this store.
When she had obtained sufficient names Gallagher telephoned Hilliard for assist-
ance in completing the regular decertification petition form and they arranged for her
to go to his home that night, where she went with Nanni and other friends. Hilliard
looked at her signature sheet, and she explained she was in a hurry because employees
were beginning to remove their names from the list; Hilliard gave her all the informa-
tion necessary for the petition. When Gallagher and her friends had left, Hilliard
returned to the store for a final item of information he did not have at home-the
address of the local union. On returning home he telephoned Gallagher to tell her this.
Somewhat later, still that same evening, Gallagher lacked still another bit of informa-
tion-this time the date of the local's certification. Again Hilliard left home to return
to the store, found this, and after returning home telephoned Gallagher anew. Finally,
Gallagher was able to file the petition in a letterbox about 1 or 1:30 a.m.
After the company notice relating to the privilege of discontinuing union checkoff
was posted, employees started to go to Naomi Pugh, the head cashier, to inquire how
to go about it. She twice asked Hilliard what was required; the first time he told her
"a signed request" would be sufficient She spoke to him again, because the requests
were coming on slips of paper only; she asked was this sufficient. Hilliard consulted
with Store Manager Thompson and then told Pugh: "That before we could stop
deductions that there would have to be a withdrawal and that both parties would have
to be notified." Pugh passed this information along to the employees, and at least one
girl, Nanni, who had first written only that she wanted the checkoff discontinued, was
told by both Pugh and Thompson to send a registered letter also to the Union saying
she was "withdrawing from the Union." Thompson admitted that after these talks
with Pugh, he told several employees to send registered letters to the Union.
The decertification petition was filed on July 10 and on July 17 the Respondent
refused to bargain further for this location
Meadville, Pennsylvania: Store Manager Ralph Sterritt received the decertification
brochure the day before District Manager Kerin arrived at Meadville to give the bene-
fit speech on May 23. Shortly after June 4 the store manager also received the com-
pany notice on dues deduction discontinuance and posted it on the bulletin board.
Shortly thereafter he called six employees individually to his office for interviews, and
explained to them the contents of that notice and told them to read it. He said he did
this because it had been reported to him that employees had been told they would be
penalized for discontinuing union membership. In his uncontradicted testimony,
MONTGOMERY WARD AND CO., INCORPORATED 1211
Gigone, one of the employees called to the manager's office, quoted the manager as
saying to him "... he wanted to know if I knew that there was a notice on the bulletin
board that I didn't have to join the union as the union contract was no longer in effect
after June the 1st."
Some time between Kerin's benefit speech and June 12 Ralph Canney, manager of
the tire department, asked Store Manager Sterritt how to decertify the Union. The
manager gave him full information, including the language for a signature sheet, the
number of employees required, dates, etc. Sterritt testified that "maybe" he called
Labor Relations Director Scheidt at Chicago for further help on the matter.
On June 12 and 13 Canney circulated a signature sheet, and with help from Klein,
a tiremounter in his department, obtained 26 names. Klein and Hilton, another tire-
mounter, signed for him. Klein assisted in the solicitation and himself obtained some
of the names.
Although Canney's work station is outside the building proper, in the warehouse or
tire section, he signed up at least three girls in the credit department, immediately
adjacent to the manager's office. While he was so engaged, on June 12, he was in and
out of the office. He showed his sheet to Sterritt, "it was possible" the manager told
him he already had enough names, he called the Board's office from the store and
told Sterritt he was waiting for a return call. Apparently while all this collaboration
was going on Sterritt told Canney that there were "quite a few" decertification petitions
being cii culated.
Hutson, the assistant store manager, also knew what Canney was doing. Hutson
testified that during that period a union business agent told him Canney was circulat-
ing an antiunion petition on company time but that he, Hutson , ignored the complaint
and said nothing to Canney.
Sterritt said he saw Canney with a "paper" in the store during working hours, and
"assumed" he was getting signatures; the manager also admitted Canney told him
"he had a lot of names on the petition " At one point in his testimony Sterritt said he
once told the tire manager "he should not be doing this during company hours," but
Canney, called as a witness by Respondent, was positive neither the manager nor assist-
ant manager ever mentioned a no-solicitation rule to him or told him he should not
circulate such a petition in the store. Asked on cross-examination whether the assist-
ant store manager knew about the signature petition before it was filed, he answered:
"How the hell was he not going to know about it."
While soliciting signatures Canney said to one of the employees, Stump, that the
Company was going to drag its feet in the negotiations, and, according to Stump's
uncontiadicted testimony, that ". . . it would be a good thing for him [Canney] as far
as being in good with the boys if he did pass such a petition . . . the boys in Chicago
or the Company boys."
The record shows beyond question that Canney was a supervisor within the mean-
ing of the Act. He was manager of the tire department; he hired tire mounters who
worked under his immediate and direct supervision; he had authority to discharge
them Three of the men he hired directly were identified on the record by name-
Klein, Hilton, and Foster. He consulted no one in deciding who to hire; he had
authority to grant overtime, and to set pay rates. These facts stand on the direct
statements of the store manager.
The decertification petition was filed by Canney on June 14 and on July 17 the
Respondent refused to bargain further for this location
DuBois, Pennsylvania. The benfit speech was given here on May 21. Within a few
days Store Manager Mann received the decertification brochure from Chicago. At
one point in his testimony Mann said he never removed the document from his file
after receiving it; later he admitted he discussed decertification procedures with
Podeszwa, the new assistant manager, when the latter arrived during June. Mann also
received the June 4 announcement about discontinuance of dues checkoffs and posted
it on the store bulletin board when he received it. Mann testified that "a few"
employees asked him how to stop paying dues; among these he said was Jane Mack,
then a credit clerk and later credit manager, who was stationed next door to his
office and who frequently worked right in his office Mack later became the prime
mover in the decertification movement
On June 22 Mann read to the assembled employees a speech prepared in Chicago;
it explained to them in detail the conversion plan-a change in method of pay for most
of the selling employees-which was then being urged upon the Union as one of the
Company's contract proposals. He stressed the thought that this change was a bene-
fit to the employees, and at the start of his talk told them that while the plan had
already been put in effect in all the Company 's stores where employees were not repre-
sented by the Retail Clerks, here this could not be done because "no agreement on a
new contract with that union has been reached " As he spoke he added that ". . . we
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are obligated to negotiate this plan through the Union ... it was proposed to the Union
months ago ... the plan itself ... cannot be actually installed in our store until agree-
ment has been reached with the Union."
Shortly after the benefit speech of May 21 the employees began to send in written
resignations to the Union. As will appear below, on August 7 the Company and Inter-
national Union officials settled on a contract for all stores, subject only to local ratifica-
tion. Before August 17 the employees of the Dubois store voted to ratify, and Labor
Relations Director Scheidt was so advised in writing by the local union secretary-
treasurer on that day. By letter of August 30 Scheidt told the store manager that
although the formal contract was yet to be signed, in view of the ratification vote the
substantive economic terms of the new agreement were to be put in effect immediately.
He also enclosed a formal notice explaining the new union-security clause, which
stressed the innovation that once the formal contract was finally signed, all employees
would be obligated to join the Union. Scheidt's letter instructed the manager to post
this notice immediately; Mann posted it as directed. He also put the contract terms
in effect in the store.
On August 28 and 29 Jane Mack, of the credit department, circulated a petition
aimed at decertifying the Union and obtained 18 signatures. She testified that she
had not been assisted by the store manager, and had not discussed with him discon-
tinuance of her union dues, but the store manager contradicted her and said she had
spoken to him about it. He also testified he was off duty from Wednesday, August 28,
through Labor Day, but that during that weekend he was nevertheless in the store
and learned of Mack's decertification petition activities. There is also the testimony
of employee Ferraraccio, conceded by the manager himself, that during the week of
August 28 Mann said he would not tolerate union talk on company time.
The decertification petition was filed by Mack on September 6 and on about Sep-
tember 14 the Respondent refused to bargain here.
Punxsutawney, Pennsylvania: In a letter dated May 22 Store Manager Anderson
received the decertification brochure from Chicago. On the same day, May 22, the
benefit speech was given to the employees. Anderson also received and posted the
dues-deduction notice dated June 4. By letter dated June 22, he also received Scheidt's
letter instructing him to read a prepared speech to the employees explaining the salary
cont"rsion plan being offered then to the Union. This is the same letter and speech
sent to the Dubois store Without explanation Anderson testified that despite the
instructions to him, stated in most unequivocal and forceful words in Scheidt' s letter
he did not give the speech. One of the clearest facts established by this long record is
that Scheidt is absolute boss over all management in matters relating to union affairs.
Appreciation of the extent of management's participation and assistance in the
decertification steps later taken by Kenneth Biggs, manager of the appliance depart-
ment who had 11 years of service, and by Mary Fusco, 18 years the cashier, requires
some words on the credibility of the manager at the hearing and on the testimony of
Biggs, both clearly hostile witnesses called by the General Counsel. On August 7
Biggs and Fusco obtained 10 signatures to a document intended to support a decerti-
fication petition, the wording at its top reading' "We the undersigned no longer desire
the Union to represent us." This is precisely the language appearing in the decerti-
fication brochure in the manager's possession at that time. Biggs filed a formal petition
on August 12, and both he and Manager Anderson testified there had been a meeting
at the manager's home on the evening of August 8, where the manager assisted Biggs
in the details of its preparation. A point at issue is whether the manager also assisted
Biggs, before anything was done with the final petition itself, in preparing the signature
sheet, and proceeding correctly at that early stage.
Anderson testified that his first talk with Biggs on the entire subject of the Union
occurred on Thursday, August 8, when the man called on the telephone to ask could
he go to the manager's home that night, and that only at 10 p.m. that evening did
Anderson first learn Biggs wanted help concerning a decertification matter. Anderson
added he had to go back to his office to pick up the decertification brochure for
detailed information. Again and again he insisted Biggs had never before mentioned
decertification activities to him. With the General Counsel pressing for a better recol-
lection, Anderson's testimony became more and more irrelevant and impertinent.
Finally he admitted that before the meeting in his home he did "recall Mr. Biggs say-
ing something about the heading" for the document he was going to pass about. He
persisted to the end that he not give Biggs the language to be used on the signature
sheet.
As a witness Biggs consistently denied having asked Anderson for any information
or assistance during June or July. He also testified it was he who first told Anderson
what words he had used at the top of his signature sheet, his purpose being to inquire
of the manager whether it was correct. Confronted with two affidavits he had earlier
given to a Board field examiner, Biggs admitted he had two talks with the manager on
this subject . tho first 3 or 4 days before the August 8 meeting at the latter's home.
MONTGOMERY WARD AND CO., INCORPORATED 1213
Biggs' two affidavits were received in evidence, one dated September 26 and the
other September 27. He testified he had read and understood them and swore to them
because he believed them to be true. Among other things the first affidavit contains
the following:
I asked Mr. Anderson, the store manager for information as to how to complete
the forms. I asked Anderson how to go about getting a vote, and he told Fusco
and I that we would have to get a certain number of employees on the petition
before we could have a vote. I asked Anderson this about the time of the letter
saying we could withdraw from the union was posted on the bulletin board ....
I asked Anderson on Tuesday night after the store closed at 5:00, about the word-
ing to use as a heading for the petition we were going to circulate. This was
Tuesday, August 6, ... he told me something like we would have to use a separate
paper with a heading on it and get the employees to sign that instead.
Biggs also testified that after signing the first affidavit, he pondered upon the matter
and thought he had made some errors and wished to correct them. He went to the
field examiner who was still in town and asked the privilege of making a supplemental
statement; the investigator obliged him. In addition to some minor changes in the
details of which employees signed the petition sheet and where, Biggs added the follow-
ing paragraph in his second affidavit' "Mr. Anderson, the store manager actually sug-
gested the language that was used on the heading of the petition when I telephoned him
on Tuesday, August 6, 1963. I asked him what to put on it, or head it, and I wrote
words to the effect of his suggestion which was later typed on the petition by Mary
Fusco."
Asked by the General Counsel to explain his rejection of the earlier affidavits in this
important respect, Biggs related how a few weeks before the hearing [held on Decem-
ber 11] two of the Respondent's lawyers-Mr. Hanley and Mr. Winski-were talking
to him at lunch in the Elks Club about his testimony, where Manager Anderson, and
Cowan, the man who holds the key to the store and who once was assistant manager,
were also present.5 Biggs testified that at that conference the manager "said he
thought I was wrong that he hadn't given me" the heading of the signature sheet, and
that that was the time when he became "confused" as to what had really happened.
He added that the company lawyers also told him he "didn't have to make a statement
to any Board representative, and that for this reason he had refused thereafter to
speak with the General Counsel's representatives before the hearing.
There is no need in this case for technical legal rulings, as the General Counsel
argues, on the law of evidence relating to past recollection recorded. Biggs did admit
he discussed his activities with the manager 3 or 4 days before August 8-and this was
before he prepared the signature sheet, because the names are dated August 6. Its
wording follows the Company's decertification brochure which Anderson already had
and which the Respondent prepared for the very purpose for assisting possible decerti-
fication petitioners. At the hearing Anderson contradicted himself brazenly a number
of times on very significant matters; he was repeatedly evasive, frivolous, almost con-
temptuous of the entire proceeding. He blandly insisted that whenever he is absent
-sometimes for 3 days at a time-no one is in charge of the 30 to 35 employees of
the store, and his total testimony and demeanor served only to discredit him com-
pletely. (See, especially, his testimony, below, on how he opined-" a registered
guess"-the Union did not represent a majority in November, his knowledge based on
his ability to "tell a Democrat from a Republican," and how he acted on his decision
alone to cancel a meeting with the local union. In a matter of minutes he switched
and said he had been ordered to do this.)
5 Cowan, who called himself senior department head, signed Bigge' petition and accom-
panied him to the homes of employees to help solicit signatures The evidence supports
the General Counsel's contention that Cowan was a supervisor within the meaning of
the Act. He has worked in this store for 18 years, and in 1948 became assistant man-
ager. He said a few years later he quit that post because he did not want to be trans-
ferred to another city ; no assistant manager ever took his place He has the keys to the
store, and opens and closes in the manager 's absence Anderson tells him to help on
certain things, such as check the purchases of employees when they leave the store. He
also said that, on Anderson's instructions, in the manager's absence he approves cu'tomers'
checks, hears adjustments of customer complaints over the department heads, approves
the removal of merchandise from the store for demonstration purposes, and answers any
questions by department heads. He also admitted that in the manager's absence he super-
vises all of the employees " if supervision is needed ," and that a previous manager had
also extended him this authority.
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
His denials to the contrary, it is found that Anderson did assist Biggs in the first step
by advising him on the mechanics of the signature sheet, even to the details of what
language to use. It is also a fair inference , despite his unexplained denial , that he did,
as ordered from Chicago, make the June 22 speech explaining the wage conversion
plan, with its advice that employees not represented by the Retail Clerks had already
received this "benefit." Then, as both Anderson and Biggs admitted, late at night
at the manager 's house until 11.50 p.m., Anderson helped Biggs with the data required
for correct filing of the eventual petition . Biggs' affidavit says he signed it in the man-
ager's presence.
The decertification petition was filed on August 12 and on November 20 the
Respondent refused to bargain further here.
South Gate, Michigan: The benefits speech was given here repetitively on May 21
and 22, to the approximately 375 employees. Questions were asked; one of the
employees, Miara, wanted to know "if we cannot have these benefits, then how do we
get rid of the Union," and the speaker said that "in the back of his book he had a paper
telling us how to get rid of the Union," and that "it would take a certain percentage
of names and we could file a petition and get rid of the Union." He added if anyone
wanted to see his document they should see Mrs. Murdock the next day. Murdock is
the store personnel manager. Miara spends 2 or 3 days weekly working in the office
of the personnel manager on personnel records. Thereafter several employees went
to Murdock's office to inquire about decertification. Among these were Dolores Dick-
erson, Nan Stafford, and Millie Smith
Millie Smith , a switchboard operator , and Stafford , were the principal actors in
circulating an antiunion signature sheet. Stafford is 20 years a next door neighbor
of Murdock and asked her for help. One of these employees called the Board's office
in "July or the last week in June." They gave conflicting, implausible, and most eva-
sive testimony on who helped them or how they did all this. Stafford, who signed on
July 19, said the sheet heading was written a week earlier. In any event, between
July 19 and 27, they successfully solicited 82 names ; by August 17, they had added 30
more Murdock also testified that when she returned from her vacation on August 26,
Smith told her they had enough signatures and were filing a decertification petition.
The solicitation of signatures was carried on openly in the store. Smith twice called
Ruby Springer from her place of work to the switchboard in order to solicit her signa-
ture. She also called Emile Gego on the PA system. Smith's denial of Springer's tes-
timony is discredited, because Smith's story reveals an unmistakable intent to conceal.
Management knew of Smith 's and Stafford 's activities in the store . From Personnel
Manager Murdock's testimony:
Well, occasionally Millie would say, "Well, we have so many signatures," or,
"we have so many," but this was on a voluntary basis when she would go by.
She would-you see, she comes to my office to drop off the teletypes that come in.
Well, as I say, she would tell me how many signatures she had to date. I
would say two or three times at the least she mentioned to me when she came in,
"well, I got three more today," or something like that.
The personnel manager testified unequivocally that there is a no-solicitation rule
in effect at this store. There is also testimony, however, by Russeau, business agent
of the Local Union, that at times over the years he has been in the store passing out
monthly buttons to the employees and checking on grievances. He said- "I don't
see how they could stop us ... its open to the public." During the circulation of the
decertification petition Russeau appealed to the personnel manager and to Carlson,
the store manager, protesting that this violated company rules, and that the union
officials would solicit on company time to counteract that petition. The personnel
manager checked with her supervisors and told him it would not be permitted. She
spoke to Stafford and told her not to do this on company time.
The decertification petition was filed on August 21. There was no literal refusal to
bargain here. After a strike a contract was signed on January 6, 1964.
Royal Oak, Michigan: Clement, a company representative from Chicago, gave the
benefits speech on May 22 in this store. One employee, Farkas, spoke up to say "It
was unfair to the employee if others got the benefits ." Farkas asked was it possible
for the employees to obtain the benefits and Clement said not unless the Union agreed.
Farkas went on that it was unfair and asked "did the employees have to put up with
the Union ." At this point Clement said: "It was legally possible to remove a union
from a company but it was infrequent and it doesn 't happen that often ," that he was
MONTGOMERY WARD AND CO., INCORPORATED 1215
not there to discuss it but Farkas could see him later. Another employee, O'Kelly,
said: "We don't need a union, how can we get the Union out of here." To him also
Clement said "See me after the meeting." 6
After Clement had completed his talk, Farkas spoke to him in the store manager's
office and asked how the employees could remove the Union; Clement answered
"through an election," with a petition signed by 30 percent of the employees and filed
with the NLRB. Unable to give Farkas the exact language for the signature sheet,
Clement called his Chicago office and was told he had such information with him. He
then looked among his paper and found some material from which he gave Farkas
the exact language to be used. He also warned Farkas "he was on his own" and not
to solicit signatures on company time.
During the week following Farkas "covered all of the departments in the whole
store" soliciting signatures against the Union. He spoke to Hurak, the store manager,
"a couple of times" while he was doing this • "I told him 1 was doing real good and I
almost got all the signatures." He recalled the manager saying to him "The Company
couldn't do anything until I actually got these signatures." Farkas never obtained
enough signatures, nor filed a petition; he showed his signature petition to the
manager, who looked at it and told Farkas that while he had his friends on it he had
failed because he "couldn't get the old timers to go along" with him.
A second signature sheet to support a decertification petition was circulated by
O'Kelly in September; approximately 53 signatures were obtained within a single day.
During September, the day after a union meeting, McCauley, the store comptroller,
spoke to Betty Lynn, an audit department employee, and asked "how the meeting
went" the previous night. Lynn said she was dissatisfied with the offers that had been
discussed, and McCauley then said: "If I [Lynn] wanted out, there was a paper I
could sign."
A decertification petition was filed on September 6. There was no literal refusal
to bargain here and after a strike a contract was signed on Februray 4, 1964.
Port Huron, Michigan: Vandergrift, a district manager, gave the usual benefits
speech here on May 23. According to the credible testimony of employee Hildegarde
Ruff, as Vandergrift spoke one employee commented aloud "If we wanted these bene-
fits then we would have to get rid of the Union." There is also uncontradicted testi-
mony that Vandergrift found occasion to say during the speech that "it was a darn
shame" the employees were not getting the benefits at that time "due to the fact
that we were a union store."
A few days later Florence Smith, credit department manager, asked Store Manager
Krysten Smith where to write for information on how to obtain an employee vote
on whether to keep the Union in the store. He gave her the Board's Detroit address.
The manager denied he gave any employee any other information concerning decer-
tification procedures of any kind. He said he never saw the Company's decertification
brochure.
On May 27, Marvel Meiers, the head cashier, circulated an antiunion signature
petition and in one day successfully solicited 20 names from the 40 employees in the
store. Several employees testified, with no contradiction, she solicited them in the
store during working hours. The petition, in evidence, is headed by a 23-word state-
ment following, verbatim, the suggested language set out in the decertification
brochure.
0 Madeline Sulkanen , an employee of the Retail Clerks Local Union in the Detroit area,
and who had worked in this store in 1963, testified that McCourtney had been her
"supervisor," and 4 days after Clement's speech said to her "You know you can get the
Union out of the store," and that there were forms and procedures in the manager's
office. She also testified McCourtney told her this several times thereafter. Upon the
basis of Sulkanen's demeanor as a witness, an inherent implausibility in her testimony,
and the generalities of her description of McCourtney's duties, I find her testimony in-
adequate to prove, as the General Counsel contends, that McCourtney is a supervisor
within the meaning of the Act, and therefore rest no finding of improper conduct charge-
able to the Respondent upon that lady's activities According to Sulkanen, McCourtney
always knew her to be enthusiastic about the Union, and told her these things during the
very period when she, Sulkanen, was taking time off from work to participate in union
activities as a member of the bargaining committee; she also said it was McCourtne'-'with
whom she cleared for such absences each time. She called McCourtney her "boss," said
she saw her interview applicants for employment, and added McCourtney instructed her
in her duties because she was new.
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The second name on Meiers' petition is that of Credit Manager Smith. Smith was
credit manager for 10 years and earned $70 weekly while the six or seven girls in her
department earned about $56. She said she assigned work to the girls and interviewed
applicants for employment "... He '[the manager] would tell me to contact or call the
Unemployment and get some girl in and I would take their application and if I
thought they were one who was satisfactory, I would discuss it with him before I
would tell her to come to work." (sic) "Quite often he would review and he would
say if you think it is all right, let's give it a try." Asked whether Smith had general
supervision over the girls in the credit department, the store manager testified: "Well,
yes, as far as seeing that they were getting their share of the work done and so forth."
The manager also said it was he who made the final decision on hiring. The evidence
in its totality warrants a finding that Florence Smith was a supervisor within the
meaning of the Act.7
A decertification petition was filed on May 28, 1963. During a bargaining meeting
on June 4 the Company Labor Relations Director said he would no longer bargain
for this location; the refusal was repeated on July 17.
Petoskey, Michigan: Here a benefits talk was given by Vandergrift on May 21.
During the speech employee Paxton, himself not a union member, asked: "Why he
couldn't have the benefits," and the speaker said "it was impossible for the Company
to grant benefits to the Union under the present contract as the Union would not
accept the benefits." At this point Store Manager McVay, who was present, said:
"It was too bad that so many had to suffer because of so few."
A few days later Paxton went to McVay in his office and again asked why he could
not have the benefits. More precisely Paxton asked the manager "if there was any-
thing the employees can do to be able to get the benefits without delay." The manager
replied: "I don't know much about the situation but that he might ask for a decertifi-
cation petition." (Both these quotations are from the manager's affidavit given 6
months before the hearing at this location.)
McVay had received the decertification brochure in the mail before the Vandergrift
speech, and had read it. At the hearing he first denied having suggested decertification
to Paxton; later, confronted with his earlier affidavit, he admitted the fact. He also
twice denied having suggested the language later used by Paxton on a signature peti-
tion Paxton contradicted him squarely on this point, and the petition, in evidence, is
phrased precisely in the 23-word sentence set out in the decertification brochure. In
the circumstances of McVay having the company literature on decertification in his
possession, its purpose concededly being to help managers advise employees concern-
ing such activities, and the manager's departure from his earlier sworn statements,
his attempts at the hearing to retract his earlier affidavit and his attempted denials of
having assisted Paxton on the details of the decertification procedures were unpersua-
sive. He emerged as a clearly discredited witness, with his affidavit as a direct admis-
sion against interest binding upon the Respondents
On May 27, 17 employees signed a decertification petition sheet; Paxton said he
obtained some of the signatures in the store itself. He also credibly testified that in
the preparation of the formal decertification petition, the manager assisted him with
the name and address of the Regional Director in Detroit, and the assistant manager
with the precise unit description. Soon thereafter Paxton filed the decertification
petition, which turned out to be defective in some details, and he refiled a final one
later.
Meanwhile, about June 14, the manager received the Chicago notice announcing
the employees' release from any contractual obligation to continue union membership
or dues payments.
The decertification petition was filed on June 25 and on July 17 the Company
refused to bargain further.
Muskegon, Michigan- As Vandergrift was giving the benefits speech here on
May 24, an employee, Ernest Smith, asked whether those who were not members of
the Union could receive the benefits immediately, and Vandergrift replied not until
agreement was reached with the Union.
'The Port Huron retail store was closed on Christmas 1963. The catalogue de-
partment was continued and, at the time of the hearing, the Company operated it only as
one of its regular catalogue stores. Florence Smith is in charge, and the eight employ-
ees who still work there were all employed regularly at the time of these events in
the spring of 1963.
s An attempt by counsel for the Respondent, while questioning McVay at the close
of his testimony, to elicit the thought that the witness was misled by the field investiga-
tor into signing something contrary to his true words, did not serve to rehabilitate the
witness, for it was then brought out by the General Counsel that the affidavit was given
in the presence of Stephen Conhain , one of the company attorneys from Chicago.
MONTGOMERY WARD AND CO., INCORPORATED 1217
Somers, the store manager, testified he "might have" received the Company's decer-
tification brochure from Vandergrift that day. Evelyn Dore, the girl who later
became the decertification petitioner, said she obtained all her information-where
to send her papers, number of signatures required, etc., from Audrey Smith, the
cashier, whose office adjoins the manager's and is separated from it by a 5-foot parti-
tion. Smith wrote out the heading phrase for Dore's name sheet. Audrey Smith did
not testify and the manager and Assistant Manager Kunze denied catagorically at
the hearing that either of them ever had any conversation at all with either Audrey
Smith, her husband Ernest, or Dore on the subject of the new benefits, the Union, or
the delay problem .9
On June 22, Dore circulated an antiunion petition and during that one day suc-
cessfully solicited 19 signatures; she quickly mailed it to the Board's Regional Office.
Apparently because this signature sheet bore no dates, Dore circulated a second on
July 2, and obtained 11 signatures that day and 6 the next; she then filed a formal
decertification petition.
Dore obtained about 11 of the signatures on her first petition during working hours;
she also solicited the second list mostly while people worked. The manager conceded
that he spends about 90 percent of his time circulating about the store on his regular
duties. One day sometime between June 28 and July 5-he could not be sure which-
Somers told the employees gathered at a regular weekly meeting that thereafter
there were to be no more "group discussions" on the sales floors, "for or against the
Union." Somers said he did this in the interest of better customer service, and because
"I thought the people were unhappy on their job and so forth."
The store manager received the regular June 4 communication from Chicago
explaining the employees' privilege to discontinue dues checkoffs and withdiaw from
union membership. Employee Lyman Murphy credibly testified that on about June 4
the manager asked him if he "wouldn't like to withdiaw from the Union," because
with the contract expired he was free to do so and save "$3.50 per month union dues."
Somers added to Murphy that he had also spoken to others, including Don and Lou
Pennington, and that the latter two were withdrawing. Murphy said he would think
it over, and the manager continued that Murphy should "let him know and he said
not to talk about it to anyone else because he wasn't supposed to talk to me about
those things, with regards to the Union."
As an adverse witness called by the General Counsel, Somers denied he had spoken
about the June 4 notice to any employees. Recalled by the Respondent after Murphy
had testified, he explains how when Murphy was hired he was told the union contract
required membership and that Somers had promised to tell him when the contract had
expired, Somers said that again in 1962 he had promised to let Murphy know when
the contract ended. Although Somers did not literally admit having talked to Murphy
about this in 1963, the intended implication of his testimony was to explain away
what conversation must have taken place. The manager did not otherwise contradict
Murphy. I credit Murphy's testimony.
Alice Burr, a clerk, was asked by several employees, including the cashier, Audrey
Smith, to resign from the Union and to discontinue her dues; Smith told her to go to
the assistant manager if she "wanted to know anything more about it." Burr did go
to Kunze only to tell him that because of her age and her "union seniority" she hesi-
tated to resign; Kunze replied that "they didn't have much time, that they wanted to
get the name if it was possible, so then he said that dropping out of the Union would
actually be the same as a raise because what I way paying union dues would be just
like an increase." Burr returned to her department with this and wrote out a state-
ment requesting that her checkoff be discontinued. She showed it to Kunze, who
looked at it and said she should add "that I no longer wanted to be represented by the
RCI." Burr added these words to her statement. I credit Burr's uncontradicted
testimony.lo
On July 1 Dore filed a decertification petition and on July 17 the Respondent
refused to bargain further.
0It is found that Assistant Manager Kunze did talk to both the Smiths on this subject.
He lied as a witness. His earlier affidavit, dated August 14, 1963, states: "The only
discussion I have had with persons employed at Muskegon store about the nonavail-
ability of the new Wards employee benefit plan were with Ernie Smith (department
manager-sporting goods), Audrey Smith (cashier), and Mrs. Doris Young . . . .
10 Employees Gudelsky testified that on July 9 the manager told her this was the time
"to break" the Union. She gave three earlier affidavits to a Board field examiner, dated
July 29, November 3, and December 18, and, although the first gives details of the con-
versation in which such a statement is alleged to have been made, there is no reference
in any of them relating to such language. Her testimony is not credited.
206-446-66-vol. 151 78
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hillsdale, Michigan- While the benefits presentation speech was being made here
on May 23, Carlisle, manager of the tire department, asked Vandergrift, who was
giving the speech: "Do you mean to say that we can't receive these benefits at Hills-
dale" Carlisle then turned to Jack Gossman, the union steward, with: "What is the
story? Why won't the Union agree to these additional benefits?" Gossman could not
answer As Vandergrift was completing his talk, Store Manager Montgomery, who
was standing next to him, spoke up with: "This is a hell of a note, that a small
organization can deprive the employees the benefits the Company is giving." it
On May 27, 4 days later, Carlisle and Helen Hamilton, 21 years an invoice clerk,
filed a decertification petition with the Board's Regional Office in Detroit.12 It was
supported by a signature petition on which Hamilton had obtained at least 12 names
after Vandergrift's speech.33 Hamilton was off duty on the 25th, when she obtained
the signatures, but she was also in the store, where she told Carlisle she was doing
"pretty good" obtaining names after he asked her what progress she was making.
Hamilton testified that she and Carlisle discussed the idea of decertification after
Vandergrift's speech- "We talked about the benefits, and we couldn't see why we
had no replies at the meeting as far as the Union went; so we figured that we would
go ahead then with out plans for the decertification which we had started back in
September."
The decertification petition was filed on May 27; in a bargaining session on June 4
the Company negotiator announced he was no longer bargaining for this location
and the refusal was repeated on June 17
Jefferson City, Missouri- Through the regular distribution of the company news-
paper, in the early part of May, the employees in this store knew of the new benefits
program and of the June effective date for nonunion stores. On May 21 Lewis,
regional personnel manager, gave the benefits speech After he had spoken, Howley,
furniture department manager, asked him for the name and address of the appropriate
Board Regional Director, and this information was passed on to him on a slip of paper
by the store manager later in the day.
An antiunion petition was circulated in the store by employees Howley and Ritter
at about this time, and a formal decertification petition filed early in June. These
two men were the only witnesses called at this location and a question arose on
whether the signature sheet and the solicitation activities followed Lewis' speech, or
whether it all started before his arrival The issue is not of momentous significance to
the case as a whole, but there is persuasive indication, in the inconsistent and vacillat-
ing testimony of the two employees and on the face of the signature petition received
in evidence, that all the names may well have been affixed after the benefits speech.
There are 33 names, and most of the dates appearing after the signatures are in
different ink Ritter started by saying the petition was written and circulated by
Howley "a week or so" before Lewis arrived in Jefferson City. The first two signa-
tures are Howley's and Ritter's and are followed by the dates May 18, only 3 days
before Lewis' speech. Howley then said he had added the date to his signature some-
time after he had signed. Ritter started with the statement that he wrote the petition
the same day he began circulating it, and that this was "around the first to the middle
of May." The May 18 date added after his signature is also different ink, and Ritter
said he too added a date after he had signed. Of the 33 names only 6 are followed by
a date May 21 or later.
Ritter continued by saying that there were already 10 or 12 names on the sheet
before he decided dates were needed and that all these dates were added after the
employees had signed. He also testified that "Probably 8 or 10 or 12" were added
after the Lewis speech. The total testimony of both men was vague, evasive, and
replete with claims of inability to recall particulars. On their own admissions their
solicitation activities were carried on during working hours in the store. Howley
said: " .. I'd stop maybe and somebody wasn't busy, I'd hand it to them and told
them to read it . . . they were on duty, some of them, yes, they weren't particularly
busy .. . Some employees went to his department to sign while he was at work.
Ritter obtained the Board's address by asking Lewis, who gave it to the store manager
to pass it on to Ritter. When sent to the Board Office, the petition and the signature
sheet were accompanied by a letter typed for Howley by the store manager's
secretary.14
11 This statement was established by the corroborative and uncontradicted testimony
of four employee witnesses
12 The filing date was verified in the Board 's official records in Washington, DC
13 With 38 employees in the unit, a 30-percent showing must have required 12 names.
11 The General Counsel's contention that Howley is, or was then a supervisor within
the meaning of the Act , is not supported by the evidence.
MONTGOMERY WARD AND CO., INCORPORATED 1219
The decertification petition was filed on June 5 and on July 17 the Respondent
refused to bargain further here.
Kansas City, Kansas: Towards the end of May Store Manager Kirkpatrick gave
the benefits speech to the approximately 110 employees in this store. On about June 1,
Miller, a salesclerk in the fashion department, asked Kirkpatrick "if there was any
way that we as employees could get the benefits ..."; Kirkpatrick said, "one way
would be an election, petition,"and then, at Miller's request, helped her phrase the
appropriate language to head the signature petition. With Miller continuing to ask,
the manager told her how many signatures were required, where to send the petition,
and that his secretary would be permitted, if requested, to type the papers.
The next morning the office secretary did type two copies of such a signature peti-
tion, and on June 4 Miller circulated throughout the store and successfully solicited
48 employee signatures; the next day, assisted by another employee, she did likewise
and obtained 10 more. Miller said she obtained all of the signatures in the store,
some in the coffeeshop, some while she and others were at lunch, and about one-third
of them while she or others were at work. Among the employees she successfully
approached in their office were several office clerks who worked next door to the
personnel manager's office.15
During July the store manager ordered Secretary-Treasurer Hess of the Local
Union out of the store because he was talking to employees at work. Hess had been
permitted to do this in the past with no questions asked.
On June 12 Miller filed a decertification petition and on July 17 the Respondent
refused to bargain further.
Maryville, Missouri: The benefits speech was given late in May by District Manager
Windness. After the talk Truman West, an employee, asked Store Manager
Richardson when the benefits would be received, and added ". . . he was ashamed
that they couldn't get the benefit just because there was a difference of opinion
between the Company and the Union that represented the employees." The next day,
at Kansas City, West asked Windness for help, and the district manager told him
what words to put at the head of a signature petition, who the appropriate Regional
Board Director was, and where to mail a petition. On May 28 and 29 West obtained
signatures to a petition in the store; he advised Assistant Store Manager Hilsabeck
of what he was doing. Of the 28 employees in the store he obtained the signatures of
11, about 2/3 of these while the employees and/or he were at work. The first group
to sign were office employees near the manager's office. When he had sufficient
signatures West received a decertification petition form from the Board's Regional
Office and took it to the store manager's home one evening, where the manager typed
in the necessary data.
One employee, Cecil Hubbard, testified credibly and without contradiction that on
May 29, when West was soliciting signatures, he told Assistant Store Manager Hilsa-
beck that he had been approached and Hilsabeck asked him whether he had signed.
When Hubbard answered that he had not the assistant manager said, "... he wanted
me to sign it," that "it was a chance to vote for the Union or not ......
A day or two after June 4 the standard notice announcing expiration of the con-
tract and employee freedom from obligatory union membership or dues checkoff was
received; it was posted on the bulletin board. Four employees testified about the
managers' activities respecting that notice. Kegin said Manager Richardson called his
attention to it the day it was posted; "he told us we had received a notice that we
wouldn't have to pay dues any longer and there had been a letter posted on the bulletin
board." Howell testified that in early June Richardson passed his department and
said "I could discontinue paying my dues if I wanted." When Griffin returned from
an absence on June 8, Assistant Manager Hilsabeck said to her: "Are you going to
enjoy paying union dues for nothing?" She answered she would suit herself. Garry
Kunkel testified as follows:
Mr. Richardson came down one day and asked me if I had seen this notice
on the bulletin board. I said yes, I had And he said, "Well, do you understand
what it means?" I said, "Well, yes, I believe I do." And he said, "Well, are you
going to do anything about it?" I said, "Well, I don't believe I will right now,
I believe I will ride along with the Union a week or two and see what they do."
And he said, "Well, you are prounion, then?" I said, "Well, I guess I am."
And he said, "Well, so long it's been nice knowing you."
'5 Among the signatures obtained by Miller were those of Rice and Pharis, department
managers ; because the fashion manager later told Miller these two women were not
eligible to join in such activity, Miller struck their names from her petition. The record
does not support the General Counsel's contention, disputed by the Respondent, that
Rice and Pharis are supervisors as defined in the Act
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On this record , these were fully credible witnesses . Hilsabeck said he did not
recall talking to Griffin, and then added "I might have expressed my opinion" by
asking her how she liked paying dues for nothing. He also testified he told some
employees: "That I thought that the contract was probably not worth their $3 that
they paid for it, or whatever it is. That was my opinion."
Store Manager Richardson also admitted he talked to employees about the notice.
His version of his chat with Kunkel is:
I asked him if he had read the letter that was posted on the bulletin board ...
he didn 't reply to my question ... I repeated the question . He said no .... I
said, "are you going to read it?" ... No response . . . No, he turned his back
to me . . . I said, "this is company property, you are on company time, this is
a company letter and company bulletin , it is to your benefit to read it . You will
read it."
Any variance between the testimony of the managers and these employees must be
resolved against the managers because, in addition to their admissions here set out,
their total testimony reveals reversals in factual statements in important facts, and
consistent repeated evasions and deliberate equivocations.
Richardson testified flatly that there was a no-solicitation rule in effect in the store;
he did not recall having announced this fact to the employees at any meeting. He
also said that sometime in May he personally warned Union Steward Griffin that
there was to be no solicitation in the store during working hours, that such activities
must be carried on only on her own time. He then explained he did this because he
had learned that the union secretary, Woodbury, had come to town and that there had
been a union meeting at Griffin's house the night before, and "I [Richardson] didn't
want him to conduct any of their union business in the store." He also admitted there
had been no union activity in the store to provoke the warning.
The record also shows clearly, in the testimony of the assistant manager, that both
managers knew of West's activities in soliciting employee signatures while he was
doing it in the store. A number of employees reported it to Hilsabeck, and "there was
gossip around the store then going about 2 miles a minute." He discussed it with
Richardson. There is no indication that management took any steps to stop all this.
The decertification petition was filed on June 12 and on July 17 the Respondent
refused to bargain further.
El Dorado, Kansas: Rowan, a visiting official , gave the benefits speech at a hotel,
where the approximately 35 employees were invited for breakfast as guests of the
Company. The store manager, Doyle, had learned of the benefits program in a letter
received in April, which also advised him that they would be instituted in nonunion
stores on June 1. Earl Long, the employee who later became the decertification peti-
tioner, had also learned these facts at a Kansas City business meeting, and he spoke of
this matter several times with the manager before Rowan arrived. On one occasion
Long had said to the manager: "How in hell do you get out of this thing?", and the
manager answered "Resign." Long then added "it didn't seem fair that because of
four or five or six people belonging to the Union that the rest of the store would be
penalized on the company benefits." Long also told the manager at that time he
would circulate a petition. On still another occasion before the Rowan speech, Long
again told the manager he was "going to get up a petition or pass a petition."
At the meeting where Rowan gave the benefit speech, Long asked "would we
receive benefits immediately if we didn't have the Union or if we had the union con-
tract agreed to," and Rowan replied "yes." When Rowan finished his speech, Long,
still at the hotel, asked him how he could go about getting out of the Union. Long
first testified that Rowan said nothing more than "that's your business." Later he
reversed himself and said that Rowan had also told him perhaps the time had expired
for filing a petition, and then gave Long the Labor Board's address, the necessary
phrasing for a signature petition, all from certain papers he had in his briefcase, pre-
sumably the decertification brochure prepared in the Company's main office for this
purpose.
On May 28, Long circulated a petition calling for a union election and obtained
four signatures , believing that only union members were eligible to sign. It was
returned as insufficient. He showed it to Manager Doyle, who just "looked at it ...
and never said anything." Long then circulated a second petition on June 7 and
obtained 21 signatures. Three employees testified, without contradiction, that Long
solicited them while they were at work; Long said he "supposed" he did this while
he or other employees were working.
Long filed a decertification petition on June 17 and on July 17 the Company
refused to bargain further.
Pueblo, Colorado: The local union contract at this location was due to expire on
February 15, 1964 . On the morning of June 15, 1963 , the benefits speech was given
by Coyle Davis, a district manager , who had the decertification brochure with him at
MONTGOMERY WARD AND CO., INCORPORATED 1221
the time . He recalled that about three employees during the speech, and about three
immediately after it, asked him how they could get rid of the Union. He said the
employees wanted to know what procedures to follow, what showing of interest was
required, what language to use on a signature petition, where the Board's office was.
As to the Board's address, Davis testified that he had given it "verbally" to the
manager, and that he told the employees the manager had it; he denied having told
any employees what words to use on the signature petition, saying only to them "the
Labor Relations Board could furnish them that information"; as to other instructions
sought, he said only that he told the employees "the information could be furnished
to them if they so desired."
Carpenter is manager of the tire department, two blocks away from the main retail
store. He said that by 10 o'clock on the morning of June 15, 45 minutes after
Davis completed his benefit speech, he had already started obtaining signatures on an
antiunion petition in the tire shop; the wording at it stop reads: "We the undersigned
no longer desire the Union to represent us."
This is precisely the language appearing on the decertification brochure Davis had
brought to Pueblo with him. Carpenter was sure the wording had all been written
before a single name was placed on the sheet. By 11 a.m. he had left the tire depart-
ment and was in the main store soliciting more signatures. He obtained 40 names on
Saturday 15, and 22 more on the 17th and 18th. He said the signatures were for
the most part obtained in the store or tire shop while the employees were "at work,"
and that for this purpose he visited the main store several times.
To explain the source of the heading language on his signature sheet, Carpenter
claimed, at the hearing, it came "just from legal papers I have seen in my life ... I
have been served them personally in my life ... I would just ... just thought them
up." He mailed the signature sheets to "Mr. Clyde F. Wears, 17th and Champa St.,
Denver 2, Colorado," on June 18. He said he overheard another employee mention
this as the Board's address. The post office was unable to deliver the letter.
The store manager, McArthur, was also called as a witness by the General Counsel.
He started by contradicting Carpenter, saying that at Carpenter's request on June 18
he had given him the Board's address from a "piece of paper" that had long been in
the manager's office. He added that several days later Carpenter came back to his
office with the returned envelope and asked: "is there an error so far as the address of
the NLRB in Denver is concerned?" In his second version of this conversation, while
under cross-examination , McArthur said that when Carpenter came to his office he
said: "This letter has been returned. What do I do with it now?" The manager
answered: "I will see that it gets there correctly." Carpenter then left the office,
and, according to McArthur, "didn't say anything." The manager put the letter in his
pocket and went about his business.
Later that day he drove Davis and Sullivan, another company official, to Colorado
Springs to catch a plane. After leaving Sullivan, McArthur and Davis went to a hotel
where they borrowed a typewriter and, using a corrected Board address from Davis'
briefcase, typed a new envelope for the signature sheet. They tried the post office
and found it closed; the next day McArthur gave the new envelope to Carpenter
who himself posted it.
As witnesses, Davis, McArthur, and Carpenter were clearly hostile and evasive;
their testimony in its entirety, together with other objective evidence, reveals a con-
certed determination to hide entirely, or greatly minimize management's assistance
and participation in the decertification movement, and the use, at the critical time, of
the decertification brochure which Davis brought with him to Pueblo. Davis said
he did not show the document to the store manager or to any employee. He said he
gave McArthur the address of the Board's Denver office verbally, he could not
remember where, when, or how this came about. McArthur spoke of an old slip
of paper he long had had in his file. Yet Carpenter's first letter, mailed 3 days after
Davis gave his speech, was returned for insufficient address because on its face it
bears the address exactly as it appears in the decertification brochure, and the brochure
was prepared in Chicago for the very purpose of supplying assistance that might be
requested by employees of the speech givers in consequence of their talk.ls
19 The error in the Board address as set out in the decertification brochure and as
repeated exactly in Carpenter 's first letter was that instead of naming the Board as ad-
dressee it named the Regional Director personally , and it identified only a street inter-
section , without identifying any particular building at all . The correct address, as
finally used by Davis, Is:
National Labor Relations Board
699 Railway Exchange Building
17th and Champs Street
Denver 2, Colorado
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees asked Davis what language to use on a signature sheet ; he denied giving
it to them . But within an hour of the inquiry to him, it had been written in the exact
words of the brochure. Davis testified that all he told the employees when they asked
diversified questions directed premisely to the information set out there , all he said
was they could have the information if they wished. In the light of the circumstances
of that moment , Davis' testimony must be viewed as a planned and deliberate
incoherence . He cannot be believed.
McArthur testified that he read from an old slip of paper , on which nothing else
appeared , to give Carpenter the Board 's address . But his affidavit , dated September 9,
says: "I got from my file the memo from Mr. Scheidt which contained the address of
the NLRB office in Denver and Carpenter copied it from this." On this record this
was a plain sworn admission against interest . McArthur lied on the witness stand
without restraint.
Carpenter 's explanation of how the language he used chanced to match that in
Davis' decertification brochure needs little comment and of its own weight serves to
discredit him completely too.
The finding is clearly compelled, that Davis and the store manager advised Carpenter
at every turn on how to carry the decertification activities through. These were the
sort of activities that here, as well as at other cities, later combined to form the basis
of the Company's refusal to bargain with the Union. The behavior of management
representatives on the witness stand must be evaluated against the issue of the case-
was the Company acting in bad faith ? With this in mind , the evidence received in
Pueblo warrants more than the minimum finding that Davis and McArthur answered
questions put by employees. Had McArthur been neutral in this business Carpenter
would not have brought the problem of his misaddressed letter to him with the simple
inquiry "What do I do now?" and the manager would have done something less than
simply take over and relieve the employee of any further responsibility. If Carpenter
just left the office at that point with not another word-as the manager insisted-it
could only mean his understanding was that, as a minimum , this was a joint effort of
the Company and some employees. The proof may be oblique-as it always is when
revealed by lies-but it is no less indicative of enthusiastic encouragement and stimu-
lation of the decertification sentiment in the employees by the Respondent.
McArthur also said there was in effect a rule against solicitation on company time.
Carpenter testified: "I had an idea it wasn't right on company time." The manager
had reason to believe Carpenter was doing all this during working hours. The day
after Davis' speech , while Carpenter was so engaged in the store , two local union
agents complained to the manager about it, and asked for equal time to combat it.
McArthur refused them such permission and went to check on Carpenter ; all he did
was walk to the tire shop two blocks away, and when he saw Carpenter working said
nothing to him and was satisfied. There are about 75 employees all told in the store;
Carpenter obtained 62 signatures Can there be any doubt the manager knew, and
approved of his activities despite the no-solicitation rule he enforced against the union
men9
In due course Carpenter received a formal decertification petition form from the
Board's office and filed it on June 26. In its letter dated July 17 the Respondent told
the Union it would no longer bargain for this location . The refusal was repeated in
February 1964 when the local contract expired.
Lalunta. Colorado: The benefits speech here was also given by Coyle Davis, on
May 22 There is no evidence concerning any decertification movement. A contract
with Retail Clerks Local 454 expired on June 1, 1963, and, apparently following a
merger of locals, a new contract was signed for this store with Retail Clerks Local 7
on January 22, 1964.
In July Store Manager Barnhart received a telegram from the Chicago main office
announcing that the emnloyees at the Ponca City, Oklahoma, store had voted in a
Board election to decertify their local union " 100 percent ." He showed it around to
the employees, asked a number of them to initial it, and then, as instructed from Chi-
cago, posted it on the bulletin board where it remained several weeks. A short time
later a second telegram arrived stating that the emnloyees at the Las Vegas, New
Mexico, store had also voted to decertify the Retail Clerks. Again the manager asked
employees to sign it and then posted it. Denying that he asked employees to sign the
telegrams , the manager admitted he asked them to read the messages , that initials were
put on them, and that they were posted. He said only that employees initialed "most
items." or "any literature" that arrives in the store. I credit employee Avcock, who
detailed the manager's request that employees initial the telegrams.
The General Counsel also offered the testimony of McCombs , an employee. to the
effect that Manager Barnhart spoke to him a number of times in December 1963 about
the union and tried to persuade him to start a movement to remove the Retail Clerks
as bargaining agent. McCombs quoted Barnhart as saying that the Company "would
MONTGOMERY WARD AND CO., INCORPORATED 1223
take care" of him if he "handled" this matter correctly, that McCombs should help
"break the Union," and that he wondered how many employees would sign an anti-
union petition in return for a $5 raise. Barnhart expressly denied all these statements,
while admitting he had been fairly intimate with McCombs socially and even spoke
of the Union with him on occasion. Viewed in its totality, and against the manager's
denials. McCombs' testimony does not support an affirmative finding that the alleged
improper statements were made to him. He said that at every turn he rejected the
manager's advances, yet a few months later was placed in a management-trainee pro-
gram aimed at advancement in the Company. He was extremely uncertain as to
dates and vague on many details of these conversations. More important, he seemed
to indicate that the suggested $5 bribe talk came in June; however, in his July 10 affi-
davit to a Board investigator, he made no mention of such an incident. Had it really
occurred, it is highly unlikely McCombs, seemingly a man of calm composure, would
have failed to speak of it.
A lamosa, Colorado: On May 24 Coyle Davis gave the benefits speech here. On
June 8 Litten and Koonce, two employees, circulated a signature sheet against union
representation. Litten started soliciting names at about 4 p.m. and by 5:30, when she
went home, she and Koonce had obtained 20 names. Both she and Koonce testified
they obtained some of the signatures in the store, "upstairs and downstairs." That
same evening, with the signatures ready, Litten asked Store Manager Wagner for the
Board's address. She testified he told her to send it to "Clyde Waers, 17th and Champa
St., Denver." Waers is the Board's Regional Director in Denver, and, as it turned out,
this letter never reached its destination because the address was not sufficient, the pre-
cise inadequacy of address that had caused the decertification signature sheet to be
returned to employee Carpenter at Pueblo Litten was most positive Wagner gave her
Waer's name. The manager insisted in his testimony he never told her the man's
name Necessarily the error in the address again resulted from the mistake appearing
in the information sent out in the decertification brochure which had been distributed
from Chicago. It follows once again, as it must, that Manager Wagner at this location
set out to deny what he had done.
The specific question of whether or not Wagner gave Litten Waers' name is not of
great significance in itself, but the fact that the manager lied from the witness stand
on this point, again indicates forcefully that like other store managers called as adverse
witnesses by the General Counsel, he too was determined to conceal the extent of man-
agement's activities in these decertification movements.
Two days later, on June 10, a prounion petition was started at a local union meeting,
and the next morning there was some activity in the store toward obtaining additional
signatures on it. Litten reported this to the manager immediately and by 9 a.m. or so,
according to the testimony of Nelson, an employee who did some of the soliciting,
Wagner came to her and said. "Do you have the petition? ... that petition is not to be
circulated in the store. You either stay in your department, or else ... my friends
are not circulating the petition." Wagner said he questioned Bradshaw, another
employee, about that petition, but denied having mentioned it at all to Nelson. I
believe Nelson, for Wagner was not a credible witness.
He specified that he first learned of Litten's decertification activities when she asked
him for an address on June 8, that he then told her not to carry on such activities on
company time, and that the two of them spoke of nothing else. But the prounion sheet
appeared in the store on June It, and Wagner also said this was a week after Litten
had first spoken to him. With Wagner having lied about his initial talk with Litten,
and with it now appearing from his own testimony that he spoke to her before she
took any steps at all-the question suggests itself- what else did he tell her to do? He
said that during their first talk he learned of her intent to circulate a petition. To
what extent did he know of and approve of her solicitation activities during working
hours?
A few days after June 8 a telegram was received from Chicago announcing the
results of the decertification election-adverse to the Union-which took place on
June 6 at Ponca City, Oklahoma; Wagner posted it on the bulletin board A week
later a second telegram arrived, informing the store of the Union's loss in the Las
Vegas election.
On June 24 Litten and Koonce circulated a second signature sheet, to replace the
lost one, again obtaining 20 names in a single day. Her decertification petition was
filed in Denver in June, and before mailing it she conferred with the store manager,
who assisted her in its preparation by supplying the precise name of the Union, and the
unit description, among other things.
The decertification petition was filed on June 26 and on July 17 the Respondent
refused to bargain further.
Las Vegas, New Mexico: Coyle Davis, the district manager who gave the benefits
speech at Pueblo, LaJunta and Alamosa, also explained the new benefits here on
May 23; he finished talking shortly after 9 a.m. By 10:30 that morning he, the store
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manager and the assistant store manager were in conversation at the tire shop, half a
block away from the main store, with Clifford Babbitt, the tire department manager.
There was talk about the benefits Davis had just explained ; in the conversation Babbitt
said to Davis:
I didn't think it was quite fair to our store to be jeopardized for the nonpartici-
pation in the improvements in the employees' benefits which were proposed,
because we were union, and especially, I didn't think we were to be jeopardized,
those of us who were nonunion.
Babbitt testified that Davis replied: "Don't you think that most of the employees
would rather that the Union didn't represent them now?"
Babbitt personally wrote out an antiunion petition and the next day started to seek
signatures ; he obtained 24 names during that day, some in the morning and some dur-
ing the afternoon. He solicited almost all these signatures in the store or tire shop,
some while the employees were "going to lunch." There were then 30 employees all
told at this location. On May 31 he filed a decertification petition.
Babbitt said he wrote the phrasing for his signature petition after speaking with
Davis. He testified he was assisted in composing its wording by employee Scott who
had sometime in 1962 prepared another such petition, and that he had "copied" from
her old one. Babbitt denied having also discussed the phrasing with Davis or having
made any mention of a petition to him. But Babbitt also said that while the men
were standing near the tire shop that same day, Zink, the assistant store manager, told
him not to circulate the petition during working hours. He did not explain why Zink
should say this if there had been no talk about any petition.
Davis testified that when, during his speech on the 23rd, employees asked him why
they were not enjoying the benefits, he did not respond to them "particularly." He
also recalled that later Babbitt did say "he thought it was unfair they [the benefits]
couldn't be installed, especially to those that weren't union members." Davis did
not recall saying the employees did not want the Union. He did recall, contrary to
Babbitt, that the latter said he would like to circulate a petition for an election. To
all this, according to Davis, he said nothing: "I just walked away."
Scott also testified. She swore she had given Babbitt the copy of another antiunion
signature sheet she had prepared and circulated a year earlier and that he had used
the same wording in 1963 She then identified the original of that petition, produced
by the General Counsel. There is no resemblance whatever between the phrasing of
her old petition and Babbitt's. Instead his petition, also in evidence, sets out ver-
batim, the 23-word phrase written in the Company's decertification brochure, which
Davis said he had also brought to Las Vegas with him and which he had while Bab-
bitt talked to him at the tire shop immediately after his speech.
This was the second location in this hearing in which Davis gave incredible and
therefore false testimony. The conceded purpose of the decertification brochure he
had with him was for use in exactly the situation at the tire shop that day. Coupled
with his testimony at other locations, his statement that at Las Vegas he simply
refused to talk, or just walked away when the subject of decertification arose, rings
hollow. I find he did tell Babbitt the employees would prefer not to have a union
now. And again, the exact likeness between the 23 words in Babbitt's petition and the
language of the brochure compels a finding that management assisted him in his
decertification activities. With all this it requires little more to infer that when, the
next day, Babbitt obtained signatures from 24 of the approximately 30 total employ-
ees, at least 12 of them in the store, not his regular work station, management was
aware of his activities albeit contrary to company rules.
On June 21 a Board-conducted election was held pursuant to the petition filed. The
day before, June 20, Davis returned to Las Vegas accompanied by Sullivan, an Assist-
ant Regional Director. The employees were gathered before store hours and these
men spoke to them at length to explain the imminent election; the employees were
paid for time spent at this meeting. Sullivan detailed the mechanics of the election.
Davis then read a 10-page statement, substantial portions of which were devoted to
reminding the employees of the new benefits which the Company wished to give them
and which had been offered to the Union. Davis stressed the fact that the employees
stood to gain by these benefits, that it was the Company which was offering them, and
that at all stores not represented by the Retail Clerks the benefits had already been in
effect. As an unmistakable implication arising from the circumstances of the
moment and the simple statement that it was in nonunion stores that the benefits
quickly went into effect, Davis three times found occasion to remind the employees,
although obliquely, that if the Union lost tomorrow the benefits would come to Las
Vegas too, with little delay. "I shall review with each one of you after this meeting
what your basic salary will be when payroll conversion is installed in this store,
whether it be after tomorrow or whether it be in the future if and when the Union
agrees to the payroll conversion plan." "I shall assume , if after tomorrow's election,
MONTGOMERY WARD AND CO., INCORPORATED 1225
the store becomes non-union, that all benefits that were presented to you a couple of
weeks ago could be installed in this store within a reasonable amount of time. "As
I stated earlier, I assume you will all be entitled to benefits if the store remains union
if and when the Company and Union negotiate the contract or, also, I assume you
will be entitled to those benefits if you so desire after tomorrow's election if the store
is nonunion anymore, within a reasonable amount of time."
Davis said he left the store by noon on June 20. Before leaving he spoke individu-
ally with "most all" of the employees in the manager's office. At first Davis' testimony
was that he called only those who had asked questions during his speech, or only those
who themselves asked to come to see him. Towards the end he reversed his testimony
and conceded he had all the selling employees come to the office pursuant to a sys-
tematic call-in-plan whereby each one who left passed the word to another who then
left work and proceeded to the private office. Sullivan, and either the store manager
or assistant store manager were in the office with Davis while he spoke to each
employee. Davis said that his purpose was to explain more precisely to these people
how the proposed changes in their employment conditions would affect each
individually.
I credit the testimony of Knight, at that time an employee, that when he was called
to the office, among other things Davis said: "When the store was under one master
or all the store was serving one master rather than two, at that time we would get the
benefits." Davis denied having spoken to Knight at all; I do not believe him.
The Union lost the election on June 21, and filed objections based on Davis' speech
to the employees the day before. On about July 1 the Respondent placed the benefits
plan in effect in every detail, including the selling employees' conversion plan. In
January the Regional Director found merit in the Union's objections; he also dismissed
the decertification petition because of the pending unfair labor practice charges.
No demand for bargaining was made by the Union here in 1963 after the May
petition had been filed, and the Respondent's Labor Relations Director testified it was
his intention not to bargain during that period. In February, after the petition had
been dismissed, the local union demanded recognition; the Respondent refused.
San Luis Obispo, California: The benefits speech was given on May 23. Ten or
twelve days later Paul Cope, the appliance department manager, circulated a decerti-
fication signature sheet; after he had obtained four or five names on it, some other
employee destroyed it.17 About June 11 the manager received a notice from the
Company's Regional Director in Oakland, California, announcing that all full-time
employees in the western region stores would regularly change to a 5-day, 40-hour
week, but in any store where there was a union, the change would not be made until
negotiations were completed. The store manager posted this notice on the bulletin
board when he received it.
On July 11 Cope circulated a second antiunion signature sheet and in that 1 day
successfully solicited 15 names; he obtained all of the signatures while the employees
were at work on the company premises, including the clerical office near that of the
manager and in the warehouse, 6 blocks from the retail store Assistant Manager
Griffin knew Cope was doing this; he said he saw the petition being passed around in
the warehouse and knew it concerned the Union.
Cope testified that he stopped soliciting signatures once he had obtained names
from 30 percent of the store employees. When asked he could give no coherent expla-
nation of why he chose 30 percent as a stopping point, why he decided to have the date
added to each name, or where he obtained the name of the Los Angeles Regional
Director of the Board when he mailed the petition. As a witness he was obviously
withholding information.
This was 1 of the 26 locations where in late August the Company held its own
employee elections; most of the employees cast blank ballots. When the election was
over, according to Cope's testimony, he went into the manager's office, where Pusch,
the visiting company man who had run the election, and both store managers were,
and asked what he should do with the decertification petition; one of the men replied:
"Let it go through." Manager Griffin testified he recalled Cope coming into his office
at that time while Pusch was discussing the results of the election with him. Accord-
to him, Cope just entered the room, stood a few minutes, said not a word and walked
out. In the circumstances this was not credible testimony. Cope's version is repeated
in his earlier affidavit.
Employee Chumley 2 months later asked Cope why he did not withdraw the peti-
tion, and Cope said: "He could not. It was in the hands of the company lawyer
and it was company property."
17 Cope said he passed out this first sheet "about 2 weeks " before July 11, when he
circulated a second , received in evidence . I credit Jerald Smith , an employee who testi-
fied that the first was circulated only 10 or 12 days after May 23.
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cope appears to have been a supervisor within the meaning of the Act at the time
of these events, and it is so found. He trains new men; he interviewed Hansen and
Roberts, outside salesmen in his department, and recommended favorably to the
manager as to each before they were hired. He said that when the manager inter-
views men "he sends them down to me to see whether I would approve of them."
When Hansen was hired, the store manager spoke to him first and then sent him
to Cope "to talk to him, see what I thought, whether he would be alright or not."
Cope reported Hansen would do, and the store manager had Cope call Hansen in
to work. Cope also said that when he was made appliance department manager the
store manager told him he "could fire them if I recommended them to him to be
fired ... it would have to be through him." The assistant manager told him at that
time that he [Cope] "was in charge of the department and I was supposed to run it at
my own discretion." It also appears he recommended discharge of one man who
was not released. At the hearing both Cope and Assistant Manager Griffin constantly
evaded direct answers and hedged their testimony with confusing phrases. Against
the foregoing statements drawn from Cope, the following testimony by Griffin,
elicited by Respondent's counsel, is of little weight- "Q. Did you ever tell Mr. Cope
that he had the power to hire and fire? A. Never in those words, no."
The petition was filed here on July 19 and the Respondent thereupon refused to
bargain further.
Merced, California- Hughes, assistant personnel director, gave the benefits speech
here on Friday, May 24, to the total of about 43 employees in a hotel. As he spoke
employee Hermis asked was there any way that the employees "could get rid of the
Union"; he replied that he would talk to her about it later. The next day, Saturday,
Cecelia Quinn, the credit manager, asked Store Manager Keating: "How can we get
the benefits and get rid of the Union"; he replied he had the forms and gave her the
decertification brochure as a guide. Later that same day John Greco also went to the
manager with a similar question. Keating's testimony is: "John Greco came up to
my office and said, `We want to get rid of the Union,' and I said, `Somebody has
already been in to see me,' and that was the end of the conversation." Keating also
posted a company notice dated June 11, advising the employees that western region
stores were going on a 5-day, 40-hour week, but not Merced, because it was repre-
sented by a union.
On Monday, May 27, Quinn circulated a signature petition, the heading copied
verbatim from the decertification brochure, and obtained 19 names. She said she
obtained all the names "in the alley behind the store," "during coffee breaks"; then she
admitted some were solicited in the store itself. At least five of the signatures are
those of clerks who worked in her department, the credit office adjacent to that of
the store manager. Part of her job is to type letter for the manager, including person-
nel letters and wage and promotion matters. She testified variously that that Monday,
when she obtained all of the signatures, was her "day off," "we don't have any specific
day off," "I have a month's vacation," "I was at work. I was there. I wasn't work-
ing on my job. I was there." The manager knew of her activities that day. At the
hearing he testified that no employee asked him should they sign the petition; his
earlier affidavit to a Board agent says- "Some of the employees did come to you to
ask about whether or not they should sign the petition but I told them it was their
own decision and that I had nothing to do with it " 18
With this signature sheet for support, Quinn filed a decertification petition. The
record evidence in total supports the General Counsel's contention that she was a
supervisor within the meaning of the Act. She is the credit manager with six other
employees in her department. Despite his attempts to minimize Quinn's authority,
the store manager said "Her job is to see that the production of the people are at
least partially up to par." A credit clerk testified, without contradition, that more
than once Quinn gave her a day or half a day off. Quinn has been credit manager
27 years; in September 1962, on the occasion of her 25th anniversary as an employee,
she was recognized at a dinner with the new title "Credit Sales Supervisor." She
reviews and signs employee rating sheets in her department; on her own admission:
"he [the manager] discusses it with me on merit raises." In an affidavit dated Sep-
tember 24, 1963, she said "I am manager of the credit department and have seven
employees under my direction . I do hire and fire the employees in the credit
department-of course, I do discuss it with the manager first. I make effective
recommendations regarding any of the employment conditions of the employees
under my supervision " At the hearing she said she signed the statement because
The affidavit was not made an exhibit ; a portion was read into the record, with the
error apparently resulting from the reading.
MONTGOMERY WARD AND CO., INCORPORATED 1227
she then believed it to be . true to the best of her knowledge , and then proceeded to
deny the assertions directly. Most of her answers were deliberately evasive, antago-
nistic and impertinent.
In July Assistant Manager Shaw asked employee Timmer whether she "was
union"; when she said yes, he said she "didn't have to pay . . . dues," and that he
had a letter that "says that you don't have to pay your dues." He asked was she
still paying dues, and she said yes; his reply this time was, still according to Timmer's
uncontradicted testimony : "He told me that I was throwing my $5 00 a month
away.... .
A week after the May 24 speech Store Manager Keating showed employee Lucille
Carlberg the printed booklets about the new benefits which the speaker had used
in making the presentation at the hotel, and "he asked me who got me my last raise,
whether it was the Union or Montgomery Wards " Still according to Carlberg,
Keating then added "If it had not been for the Union we could have had more
raises more often."
The manager denied having said that but for the Union the employees would
have received more raises, but he admitted: "I asked her when she got her last
raise and I said, `Why do you think you got the last raise9' She said, `Well, I know
that you gave it to me.' . . . I told her she automatically got a cost of living increase
from the Union, but this particular raise that she got was much larger than what
the Union was giving her." I credit Carlberg.
The decertification petition was filed on June 5 and on July 17 the Respondent
refused to bargain.
Sacramento, California: The contract with the Local Union here expired on
November 1, 1963. On May 24 and 25 Haggerty, an agent of the Company, gave
the benefits speech several times; there are about 185 employees in the store. He
had the decertification brochure with him and said that at a central office meeting,
where he and other agents were briefed on how to give these speeches, he was told
the brochure was for use of store managers. Haggerty had been furnished several
copies of the brochure by the Company before starting to visit the stores, and he
left a copy with the store manager here. During one of his talks at Sacramento a
girl asked how "to be out from under the Union" He told her that for further
information she should speak to the manager.
In August employee Marzoff filed a decertification petition supported by a sig-
nature sheet. One of the persons who signed was Raymond Skinner, manager of
the toy department, who said he did so on the sidewalk at Marzoff's request while a
dozen people were standing about discussing the petition.
Skinner was a supervisor within the meaning of the Act. Department managers
were expressly excluded from the current contract at this location; he was promoted
to manager in about October 1962. He testified that "In 1962 I was sort of a super-
visor of toys . . . I was called as a supervisor." He said all of this became official
in the fall of 1963, but in January 1963 he formally withdrew from the Union, in
writing, because he had been "promoted to Dept. manager." Department managers,
according to the store personnel manager, appraise employees on rating sheets used
for merit raises, are "responsible for the conduct of his employees and the general
ability of them," direct employees, and have authority to recommend promotions,
discipline , or discharge . During the summer season Skinner spends most of his
time as a regular salesman in the automotive parts department, adjacent to the toys,
and he asserted at the hearing that when toys are out of season, he does virtually
nothing there. He also said, however, that he attends regular Saturday managers'
meetings in the summertime also.
The decertification petition was filed on August 5, the current contract expired on
November 1, and on November 20 the Respondent refused to bargain.
Chico, California: Retail Clerk's Local 17 was certified by the Board for Chico
on September 21, 1962. Subsequent negotiations produced no agreement and this
location was merged into the group bargaining which later took place at San Francisco
in the spring and summer of 1963. On May 21 Haggerty gave the benefits speech;
at the end an employee turned to the entire group and asked: "Well, how do we
get rid of the Union." The next day employee George Bradt called a meeting of
employees at a hotel to advocate rejection of the Union. Word of the meeting was
passed among the employees through the store switchboard. On the 23d he started
to circulate an antiunion signature sheet and by the end of May 24 had obtained
32 names from the approximately 50 employees of the store. Bradt solicited all of
the signatures on the store premises while the employees were at work. The first
six or seven names were obtained on the mezzanine floor, where the store manager
and the operating managers have their offices. Bradt also said both the manager and
the merchandising manager knew what he was doing because "I made no secret of it.
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I took the petition around to various ones and asked them if they wanted to sign
it ... I took it all over the store."
Store Manager Leverenz was examined by the General Counsel on whether he
gave Bradt any help or encouragement toward the decertification movement. Per-
sistently and repeatedly he claimed he could not recall any questions put to him by
Bradt or by any other employees on the subject of the new benefits or decertification;
he evaded all interrogation with saying "probably" some questions were asked,
"maybe" he had made certain statements, he "thought" he had said this or that.
In the midst of his continuing denials, he admitted having called Sweetow-a com-
pany official in the Oakland Regional Office-to ask what he should tell Bradt, who
had asked him a question and was sitting in his office, and that Sweetow gave him
the NLRB's office address and advised him to tell Bradt to go to the Board. Finally,
after continued pressure by the General Counsel, and with his earlier affidavit placed
before him, the manager admitted Bradt had asked him how to go about getting
the benefits and that his reply had been: "He would have to wait until the union
negotiations were completed." Leverenz continued to insist he could not recall
having expressed regret to the employees that their enjoyment of the benefits was
delayed. Finally the General Counsel proved, on the record, that in an affidavit
signed on August 1, 1963, as part of his recollection of the events while Haggerty
was giving the benefits speech, Leverenz stated. "As I recall, I did make the state-
ment that it was too bad that we couldn't share in the employee benefit plans until
something is worked out with the Union." Further, Leverenz was recalled as a
witness for the Respondent towards the close of the hearing in Chico; now he con-
ceded candidly, in response to a question by Respondent's counsel, that Bradt had
also asked him outright how the employees could get rid of the Union.
The testimony of employee Tina Roberts is that during May 22, the manager
showed her the benefits booklet which Haggerty had brought to the store and said
to her in the office: "Tina, doesn't this look pretty good ... unfortunately we can't
talk about it because unfortunately we are with the Union." 19
On June 3 Bradt filed a decertification petition; apparently because the Board
certificate was less than 9 months old, the petition was either dismissed or with-
drawn. On September 23 he filed a second petition, and the Respondent thereafter
refused to bargain.
Pittsburg, California: The local union contract here expired on May 4, 1964;
the benefits speech was given on May 21. 1963. On June 24 and 25, Alfred Johnson,
the service department manager, circulated a decertification signature sheet; he and
Ostrom, the furniture and appliance manager, obtained 12 signatures from the 32
employees in the store. Before doing this, Johnson asked help from the store man-
ager, who told him to prepare a petition and obtain one-third of the employees' signa-
tures. Johnson then obtained the Board's office address from the manager and mailed
the signature sheet to the Board. Ostrom had asked the manager on the day after the
benefits speech whether nonunion members could receive the benefits also and was
told it was all or none.
Johnson received decertification petition forms from the Labor Board, but it does
not appear that any petition was in fact filed at this time-the contract here still
having about a year to run. On about August 5, Ostrom did file a petition; before
doing so he went to the store manager for assistance and was given certain forms
to use as guide-presumably, those attached to the Company's decertification brochure
as illustrative examples.
The national settlement reached in August in Chicago was ratified by the Pittsburg
store employees later that month, and shortly thereafter, with the Union agreeing,
the substantive provisions were put in effect on August 29 and September 5, except
for the union-security clause. Ostrom said he withdrew his petition when he was
satisfied the new benefits had been placed in effect.
If Ostrom, who is manager of the furniture and appliance department, is not a
supervisor within the meaning of the Act, he borders very close to it. There are
always one or two other employees in his department with him, and he directs
their work. When people are hired, the store manager first interviews them and then
sends them to Ostrom, who inquires into their knowledge and education ". . . to
figure out whether they would be a good salesman ." If Ostrom is satisfied, he tells
the manager he approves. He asked the manager to discharge one of the salesmen
for incompetence; when Ostrom returned from vacation shortly thereafter, the man
had been released.
19Manager Leverenz having discredited himself as a witness , there is no substantial
reason for rejecting this uncontradicted testimony of Roberts , even though in her earlier
affidavit her recollection of the manager 's talk does not literally mention the word union.
MONTGOMERY WARD AND CO., INCORPORATED 1229
There was no literal refusal to bargain at this location . When the last contract
expired in May of 1964 a new one was made.
Richmond, California: Local Union 1179 was certified by the Board at Richmond
on July 31, 1962. Subsequent negotiations produced no contract and this store, too,
was included in the group bargaining at San Francisco in the spring of 1963.
Assistant Regional Personnel Director Hughes went to Richmond and made the
benefits presentation to the 375 employees in a series of speeches over 3 days-
May 21 , 22, and 23. In preparation for the speeches , which he gave in several stores,
he had received three or four copies of the decertification brochure ; its purpose, he
said , was to give guidance to store managers "in case" employees asked about
decertification . He had a copy with him at Richmond.
When he spoke, several employees asked why they could not receive the benefits,
and how they could get rid of the Union . Hughes testified that all he told them was
that they should go to the Board . One of the employees , who, immediately after
Hughes started giving his speeches , decided to take steps to remove the Union from
the store , was Vallona Patterson , assistant manager of the fashion department.
There are 20 to 30 employees in this department and part of Patterson 's duties are
to interview employment applicants ; she also substitutes for the department man-
ager-a conceded supervisor-whenever the latter is absent or on vacation. On
May 22 Patterson had her husband telephone the Board 's Regional Office for infor-
mation about decertification petitions . A letter in reply was dispatched from that
office the same day ; it was placed in evidence.
On July 23, 1 week before expiration of the certification year, Patterson prepared
a signature sheet to support a petition against the Union . She wrote its heading
language and gave it to Bakalian , assistant manager of the tire department , who pro-
ceeded , in the next few days, to solicit 126 names ; by July 30 there were 180 sig-
natures on the document . Bakalian said he obtained most of the signatures at the
snackbar, and some from employees while they were working. Patterson herself
signed while on her job. Bakalian also testified he filled in the decertification petition
at home, using the manager 's office typewriter which he borrowed for this purpose.
Store Manager Warren denied any employees spoke to him on the question of
how to obtain the benefits explained by Hughes ; he said such questions would
normally go to any of his six assistants , all regular supervisors , and that he was sure
the staff had received such questions . He also testified he gave no information to
any of these on what they should respond.
The General Counsel also called Store Personnel Manager Cowan as a witness;
she was present at 15 of the separate speeches Hughes gave in this store. She said
she had "a vague remembrance " of having seen the decertification brochure, but
explicitly denied ever having spoken to Patterson or Bakahan about the benefits or
the subject of decertification . Patterson denied, as a witness , that she spoke at any
time to any company representative concerning what language to use on the signature
sheet. She swore she obtained the wording from the Board letter sent to her hus-
band . She lied, for she had the letter before her at that moment and it contains
nothing remotely resembling such phrasing.
The signature sheet, in Patterson 's handwriting , contains the following language:
"We, the undersigned , desire an election to be held to determine whether the
Union represents the majority of the employees in the store," is also sufficient.
Referring to this step in decertification proceedings , the Company 's brochure, which
Hughes had brought to the Richmond store and which the personnel manager
"vaguely" remembered having seen , reads as follows:
Usually, it is in a form of a statement appearing at the top of a blank piece
of paper which states: "We , the undersigned , no longer desire the Union to
represent us." Other similar language which expresses a desire to have an
election is also sufficient . Thusly, the statement, "we, the undersigned , desire
an election to be held to determine whether the Union represents the majority
of the employees in the store" is also sufficient.
Several inescapable conclusions and inferences must be drawn from the foregoing
evidence . Someone on behalf of the Respondent told Patterson how to proceed;
the words "is also sufficient" on her petition preclude any other possibility . With the
witnesses denying she ever asked for help , the suspicion arises that this came about
by management going to her in the first instance . The denials of the company repre-
sentatives as a group must be rejected ; a judicial proceeding is not a shell game-now
you see it, now you don't . Moreover , the clear intent to conceal management's role
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the decertification movement suggests that the real extent of its assistance to
Patterson and Bakalian may have been much more A minimum inference is that
the companywide policy against solicitation of this kind during working hours, of
which Labor Relations Director Scheidt spoke as the defense witness towards the
close of the case, was knowingly overlooked while Bakalian, to the manager's
knowledge, obtained over 125 signatures in the store itself in so short a time.
An equally disturbing and perhaps more significant deceit is suggested in Patter-
son's behavior the moment she appeared on the witness stand. The first pertinent
question the General Counsel asked her, as he handed the witness the top sheet of
the signature petition , was whether she had ever seen it before . She replied: "Yes,
you showed that to me the other night and I wrote it." Like all other witnesses
Patterson had been excluded from the hearing room before being called , yet she
answered the heart question of the intended examination before it was asked, and
with a deliberate lie. Her total testimony leaves no doubt that by the phrase "I
wrote it" she meant she had herself conceived the phrasing Was she coached in
advance by someone who knew the pattern of evidence the General Counsel had
been offering in the many cities where the hearing had already progressed?
The decertification petition was filed here on August 1; on November 4 the Union
demanded bargaining and on November 10 the Respondent refused.
Ponca City, Oklahoma: The union contract in this city expired on June 1, 1963.
In March, an employee, Don Behrend, circulated a petition to unseat the Union and
obtained 18 signatures. He filed a decertification petition on March 19. A consent-
election agreement was signed and the Regional Director conducted a regular
election on June 6; the employees voted 21 to 11 against union representation. The
Union filed objections and, after charges were filed in the present proceeding, the
Regional Director dismissed the petition.
Store Manager Cook helped Behrend to prepare the signature petition; he told the
employee how to word the statement, gave him the Board's address, and said the
petition should be mailed in before the contract expired in June. Behrend obtained
9 or 10 of the signatures during his working time, in various parts of the store. While
he was doing this the manager asked "quite generally as to how it was going," and
Behrend said "fine."
The only witness called at this location was Behrend and the evidence is con-
flicting as to when he learned about the Company's new benefit plan and the fact
that union approval would be required at this store. He started by saying it was
only after he had filed the petition, on March 19, that he first learned from Cook
that the new benefits were to be given in nonunion stores and not where there was
a union. He repeated several times that his first knowledge on the subject came
from a Wichita meeting after March 19. It was then established that in his earlier
affidavits, given in November 1963, Behrend stated- "I recall that during my
March 9, discussion with Mr. Cook when he advised me on the wording for the
petition, I was already aware that Montgomery Ward & Company had been consider-
ing new or greater benefits in retirement, insurance and payroll and otherwise "
Behrend then explained that he had become "aware" of the benefits because the
store manager had told him.
On May 23 Rowan visited this store and gave the usual benefits speech, using the
same script that had served all other Retail Clerks locations. On June 5, the day
before the scheduled Board election, Rowan returned to the store and delivered to
the assembled employees a second prepared speech. He started by telling them the
Union was an unnecessary financial burden upon them and generally urging them to
vote against it He then reverted to the benefits speech he had given 2 weeks before,
and again emphasized, more than once, the fact that at all stores where there was no
union the benefits had already been put in effect. He also told them of the salary
conversion plan that the Company was offering, and here again explained that so
long as there was a union it remained subject to negotiations.
During the 2-week period between Rowan's two speeches, the store manager dis-
cussed a number of times with Behrend the question of how individual employees
were likely to vote in the coming election He asked Behrend how he thought the
employees would vote. Behrend testified that in these talks: "Mr. Cook stated that
this would be a good thing to bring up, this thing about the benefits, which were
going to go into effect and to tell them they would go into effect sooner in the
nonunion stores than they would in the union stores . . . he told me if they under-
stood this , chances are they would understand the situation better and vote against
the Union ." Behrend and Cook spoke of 5 or 10 particular employees, and then
MONTGOMERY WARD AND CO., INCORPORATED 1231
Behrend , in the store during his work hours , conveyed this message as a selling
point to the employees to persuade them to vote the Union out. Late in his testimony
Behrend also recalled the conversation with Cook as follows:
Q. What did he say in this regard?
A. As has been previously stated this can be used as a talking point and he
had hoped the people would understand that the Company was giving these
benefits to its employees and that it was not the Union that was getting them
for the employees.
Consistent with Rowan's last speech, and with Store Manager Cook's message to
the employees, the Respondent placed all the benefits in effect shortly after the June 6
election, which the Union lost.
In late May, at one of the bargaining meetings, the Respondent announced it
would no longer bargain for this location.
Salisbury, Maryland: The union contract at this location expired on January 8,
1964. Early in May the company newspaper circulated in the store and the employ-
ees learned the details of the benefits planned and the decision to put them in effect
on June 1. Towards the end of May three employees attended a union meeting, and
one of them-Lewllyn Hearn-asked the business agent in charge why the benefits
were not being given the employees; the agent was unable to reply and answered
he would inquire. On May 31 Hearn circulated a letter to the Local Union, calling
upon it to explain why the employees were "being denied the right to participate in
the new employee benefit program." She and Dean Magee obtained 39 signatures
to this letter. Both the employees solicited signatures in the store while employees
were at work.
In August Magee filed a decertification petition with the Board. To support it he
circulated a signature petition, again with Hearn's help, and successfully solicited
35 names. Hearn obtained one-third of these in the store, half while the employees
were at work; Magee said he got half his names during working hours, some of them
in the credit department. Before soliciting the signatures Magee asked Gallaher,
the store manager, whether he objected; Gallaher said it was none of his business.
The petition was dismissed as premature. Magee reported this fact to the store
manager and in this conversation there was discussion of proper time for filing.
Magee then circulated still another signature sheet, this one to support a decertifica-
tion petition he filed in October; he obtained 35 names to this one.
There was much talk about the new benefits among the employees, and the store
manager discussed them at a personnel meeting of the employees late in May and,
apparently, at subsequently weekly Friday meetings. He testified that he discussed
what had been printed in the company newspaper. Carl Tankersley recalled that at
one of these meetings the manager said "how would you like to have a third party
come in, that is the only thing I can remember." Helen Foxwell testified that the
manager had said ". . . he didn't like a third party telling him what to do. And
that he would rather not have it. We could get along much better if we didn't, we
could settle our disputes." Thomas DeVage testified that at one of these meetings
the store manager said: . . something about why anybody in their right mind
should pay $4 for dues, when anything they got was coming through the Company,
the Company gave it to them." The store manager said employees had come to him
to ask when the benefits would be received in the store. He also recalled having
discussed, at a personnel meeting, the substance of a newspaper article concerning
the benefits ". . . it was just stated when the Company and the Union got together,
they would go into it"; he told the employees these were company benefits Pressed
on whether he had said the Company preferred to deal directly rather than through
a union, he said: "There could have been a word dropped here or there." It was
almost impossible for the General Counsel to force a direct or coherent reply from
Gallaher on this entire subject of what he told the employees during the summer of
1963. I credit the testimony of Tankersley, Foxwell, and DeVage.
Tankersley also testified that sometime between August and October the manager
told her "If I catch you talking while you are working with the union man, you will
be fired." Oscar Holinger, a local union business agent, testified that during June
the manager told him he could no longer check the employee timecards on the rack.
He had done this before, and continued to do it thereafter Foxwell also said that
at one of the personnel meetings the manager announced that ". . . he didn't want
us to talk to him [union agent]. If he came into the store, not to. If he caught us
talking to him, that we would be fired." And Magee, referring to her signature
solicitation activities in the store, said that Gallaher never told her she could not
do that.
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The decertification petition was filed on October 24, and in January, after the last
contract had expired, the Respondent refused to bargain.
As to the remaining 10 retail store locations named in the complaint, the General
Counsel offered no oral testimony. There was instead a stipulation of facts, together
with documentary proof, set out on the record for each of these stores. The following
statements of fact, therefore, rest upon agreement between the parties, and docu-
ments admitted into evidence with no issue of authencity raised.
Mount Vernon, Illinois: The benefits speech, including the standard union situa-
tion introduction, was given between May 20 and 25. On August 16 the employees
voted to ratify the settlement, reached nationally in Chicago, and the Union quickly
advised the Company. It reiterated this information by letter of September 6, which
also requested a copy of the agreement for execution. By letter dated September 13,
the Company acknowledged the Union's communications and said that at all loca-
tions where ratification had been voted, the store managers had already been
instructed to place the substantive provision of the agreement in effect. The Com-
pany advised the Union that there was a delay in working out the final contract
language with high officials of the International. The Union agreed to having the
substantive terms of the contract placed in effect, and this was done.
On August 30, following the national settlement in Chicago, a notice from Chicago
was posted in the store informing the employees that a new contract has been
agreed to for this location, that it had not yet been executed, and that after it
should be signed all employees would be obligated to join the Union; the notice twice
stressed actual signing must occur before the obligation was imposed. The earlier
contracts had only a maintenance of a membership union-security clause. This is
the same notice that was posted elsewhere at about the same time following employees
ratification.
On September 3 a signature sheet to support a decertification petition was circulated,
in part on the store premises, and 15 names obtained from the 38 employees in the
store; it was sent to the Board's Regional Office on September 4. On November 4
employee Winninger filed a decertification petition.
The Respondent never sent the contract to this Local Union, and in January 1964
it refused to bargain further.
San Jose, California: The benefits speech was given by Hagen, a regional manager;
while he spoke an employee asked "how employees could go about getting rid of the
Union," and Hagen read portions of the decertification brochure and explained the
procedures. He also said he would give the appropriate literature to the store man-
ager and did leave the brochure with him.
Between May 22 and 31, two antiunion sheets "were circulated to employees work-
ing at the time"; the assistant store manager reported to the store manager that he
had heard the petitions were being circulated. Thirty names out of 88 employees
were obtained; some employees asked the manager should they sign and he answered
they should decide for themselves. On June 3 a decertification petition was filed and
on July 17 the Respondent refused to bargain.
Madera, California: The benefits speech here was given on May 23. A signature
sheet was circulated and 7 names out of 15 employees, were solicited on June 26;
the next day a decertification petition was filed. On July 17 the Respondent refused
to bargain further.
Modesto, California: On May 24 the benefit speech was given in two sessions at
a cafe, and between June 1 and 3 a signature sheet was circulated and 30 names
obtained from the 62 employees in the store. A decertification petition was filed on
June 4 and on July 17 the Respondent refused to bargain.
Woodland, California: On May 25 the benefits speech was given and between
May 25 and June 6 a signature petition was circulated and seven names obtained.
The decertification petition was filed on June 7. On July 17 the Respondent refused
to bargain further.
Portland, Oregon: Two unions had been certified jointly as bargaining agents in
this store: Teamsters Local 255 and Retail Clerks Local 1257, their single contract
expired on June 1. The benefits speeches were given to the 108 employees on May 21
through 24. From June 7 to 11, 58 employees signed an antiunion signature petition
and a decertification petition was filed on June 12. On July 17 the Respondent
refused to bargain further.
Baker, Oregon: The record does not show what collective bargaining there was
in this location before the summer of 1963. Scheidt testified toward the end of the
hearing that the Company had at one time recognized the Retail Clerks, after an
attempted raid by the ILA. In June the Respondent filed a petition to test the
majority strength of a Retail Clerks Local Union. While it was pending before the
Board the Company held the usual election on August 27, and that union lost. The
speech made to the employees before the balloting was exactly like that made at all
MONTGOMERY WARD AND CO., INCORPORATED 1233
other elections on the west coast where identified Retail Clerks locals had in fact
been recognized or certified. After the election the Respondent put in effect the
new benefit program.
Spokane, Washington: There are 120 employees here; on May 21 the benefits
speech was given; between June 4 and 13, 40 employees signed an antiunion petition;
on June 17 the decertification was filed. On July 17 the Respondent refused to
bargain further.
Longview, Washington: There are 100 employees here and the local contract
expired on June 1. The benefits speeches were given May 21 to 25. Between
July 6 and 15 42 employees signed an antiunion petition and a decertification petition
was filed on August 14. The Respondent thereafter refused to bargain for this
location.
Anchorage, Alaska: The contract here also expired on June 1. The benefits
speech was given in May, a signature petition was signed on June 1 by all four
employees in the store, and a decertification petition filed on June 10. On July 17
the Respondent refused to bargain.
3. Bargaining meetings
Beginning about 60 days before the June 1 expiration date of the vast majority
of the contracts in effect, the parties bargained extensively over the terms of a new
agreement. In the early stages of the negotiations there were regional meetings, each
encompassing large geographical areas, with local, international, or council officials
of the Union conferring with main office representatives of the Company. These
being inconclusive, there followed, in July and August, centralized meetings in
Washington and in Chicago, with the highest officials of both parties, eventually
assisted by a representative of the United States Conciliation Service. Ultimate agree-
ment was reached on August 7 on a settlement to be submitted for direct ratification
by the employees of each store separately.
The General Counsel introduced a certain amount of evidence, oral and docu-
mentary, concerning these meetings. His purpose was (1) to establish the fact of
outright refusal to bargain as to certain stores, decisions which were announced by
the Respondent for the most part during the conference or in correspondence inci-
dental to the negotiations, and (2) to show the asserted coherent and significant
relationship between the Respondent's position vis-a-vis the Union at the very time
it was engaging in certain conduct directly affecting the employees. The Respondent
in turn introduced voluminous details, both as to bargaining conversations and writ-
ten proposals and counterproposals, setting out the total picture of the bargaining.
It also placed into evidence a full story of the intramanagement talks and decisions
preceding these events and explaining the economic considerations which lead the
Company to institute the so-called new look benefit program. Essentially the
Respondent's justification for all of this evidence is the argument that as it was
charged with a "refusal to bargain," proof that bargaining in fact did take place
rebuts the basic theory of the complaint.
In view of the real issues presented-and particularly of certain concessions made
by the General Counsel both during the hearing and in his brief-much of this
extended evidentiary matter need not be set out in substantial detail here. It is not
claimed that the decision to alter insurance, retirement, savings and vacation benefits
of the employees was motivated by any illegal purpose; indeed the record shows
beyond question that the program resulted from purely economic factors. Nor is
there any suggestion that as to those stores, about 40, which are not mentioned in
the complaint, the Respondent failed in any respect to fulfill its statutory duty to
bargain. The case is strictly limited to those 39 locations listed in the complaint.
And as to the critical allegation that there did come a time when the Respondent
refused to continue recognizing the Union, the parties do not disagree. The record
shows explicitly, and the Company's labor relations director candidly admitting from
the witness stand, that from certain dates forward he did not bargain although
requested to continue doing so. The principal question is whether when he did
refuse to negotiate further as to those stores, his decision to do so was grounded
upon a good-faith doubt as to the Union's continued representative status. This being
the basic issue, it is only necessary to refer to the bargaining negotiations to the
extent required for understanding the real matters in dispute.
The Respondent first advised the Union of its desire to institute the insurance,
retirement, and stock purchase innovations-the so-called three giant steps-when
its Labor Relations Director Scheidt visited Murray Plopper, vice president and
assistant to International Union President Suffridge in Washington on January 10,
1963. Scheidt spoke at length on the details of the revised benefit program, of the
206-446-66-vol. 154-79
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
internal upper level management changes that had taken place in the Company, of
the economic reasons for wanting to take these steps. He also opened the question
of the practical difficulties incident to bargaining for upwards of 80 separate store
units represented by a large number of local unions. The Company is organized
into separate geographic divisions for operational and administrative purposes, and
the Union also has regional groups, with vice presidents supervising the activities of
various locals through councils. In 1958, when the last agreement had been made-
a 5-year contract with each of the stores then represented by the Retail Clerks-
negotiations had been centrally conducted, with high union officials doing the prin-
cipal bargaining and the resultant settlement then ratified by each store or local union
unit before the separate contracts were signed. Scheidt suggested some such arrange-
ment be used again, and he pleaded his limited staff personnel as a practical reason.
Plopper did not reject the suggestion and promised to communicate the idea to his
subordinates throughout the country and to keep Scheidt advised of developments.
He also made clear the matter must ultimately rest with each local union's desires.
The next month Scheidt was invited by the International Union president to speak
at the Union's executive board annual meeting in Miami. He appeared there on
February 24, before a group of approximately 25 of the highest union officials, and
again discussed in detail the component elements of the proposed benefit revisions;
Scheidt also detailed the Company's economic reasons for all this and how the over-
all desire of the Company was to resolve the bargaining quickly so that it could place
in effect these new benefits throughout the Company by June 1.
In due course arrangements were made to discuss the respective contract demands
in five separate grouping of stores, each a segment of the country, with the union
committee consisting of the business agents or other executive officers of the various
locals, together with a higher official, such as a vice president or the secretary of a
regional council. Negotiations took place in Chicago, San Francisco, Portland, Pitts-
burg, and Detroit. Speaking for the Company there were Hanley and Conhain,
of the main office in Chicago, who participated in most of the meetings all over the
country; locally there was Lloyd, in California, Lambert, on the east coast, and
one or two others who also took part in negotiations from time to time. On many
occasions, and especially the more significant meetings and all the really centralized
or national talks which in July and August served to produce the eventual settlement,
Scheidt, the top labor relations director, took charge and lead the bargaining for
the Company. His counterpart on behalf of the Union was Murray Plopper, from
Washington.
Down-to-earth bargaining started with the California group in San Francisco on
April 2; successive sessions were held there for 11 further meetings, through May 30.
Many detailed written proposals were exchanged; there was comprehensive and
repeated discussion of all the issues. From the start the Company explained the
new benefit program as a major item it wanted incorporated in a new agreement. The
Union suggested other types of changes in the existing insurance and retirement sys-
tem; understandably the Company held firm on these matters, and persisted in having
its way, for companywide uniformity in such matters as pensions and profit sharing,
or stock-purchase arrangements, is virtually an economic dictate in any large com-
pany. There were concessions on each side on minor items, adamant insistence on
others. As the days went on the crux of disagreement was reduced to a short list of
what the Union called "must" items; chief among these was a demand for an
across-the-board raise during the first year of any new contract and a full union-ship
clause. The Company held firm to its offer of only a selective individual group of
merit raises in the first year, with an across-the-board raise only in subsequent years,
and a limited union-security provision.
During May bargaining sessions also were held in other regions. The Chicago
group met five or six times in May. In Detroit negotiators met on May 9, 10, 21,
and 22, and on June 4. There were like meeting in Pittsburgh and Philadelphia for
the Eastern group, on May 7 and 15, and on June 5. For the northwestern region
regular bargaining sessions took place in Portland, Oregon, on May 16 and 17, and
on June 11, 12, 20, and 21.
There is no evidence as to what was said or done at Portland, but judging from
what took place in the other locations, it was regular discussions everywhere on the
merits of the diversified proposals by each side. In every case the Company's spokes-
man took pains at the outset to explain fully the new benefit plan proposals, with
slides and written brochures setting out the complete picture. Written proposals,
in detail, were submitted by the Union. These varied somewhat because they were
the result of a regional centralized collation of the desired expression of the many
local unions. In substance, however, the Union's demands were fairly uniform.
The Company's proposal was standard everywhere.
MONTGOMERY WARD AND CO., INCORPORATED 1235
There was much bickering among the witnesses as to who postponed the next
meeting unreasonably, who insisted too strenuously on this item or that, who was
delinquent in the duty to submit concrete proposals from time to time, who took a
too high-handed position on certain matters, and even, impliedly, who evidenced a
lack of responsibility in going forward with the bargaining, presumably, by failing
to make significant concessions. But there is no contention by the General Counsel
that any demands of the Company were in themselves illegal or outside the proper
scope of collective-bargaining subjects, that the Respondent's representatives ever
failed to consider and to discuss the Union's myriad contract proposals, that man-
agement did not meet with the Union on request and at reasonable times, or that
any conduct of the company negotiators in the course of the bargaining sessions
that did take place in itself fell short of the dictates of the statute. Therefore, all this
oral testimony respecting what occurred at the many meetings held adds nothing of
significance, either to support the inference sought by the complaint of bad faith in
the subsequent outright refusals to bargain, or to justify, if there can be justification
on this record as a whole, the actions which management representatives took in
their direct dealings with the employees, both while negotiations were taking place
and after the final settlement had been reached in August.
With the regional negotiations failing to produce agreement, and with most of
the contracts having expired on June 1, the parties met again in Chicago on June 19
with top level officials trying to settle the matter for the entire country. Here Plopper
gathered the principal spokesmen for the various councils of the International-the
vice presidents who had led the negotiations in different cities-and the entire group
met with Scheidt and his assistants. Despite an all-day session no agreement was
reached. This same group on both sides tried again in Washington, at the office of
the International, in a 2-day session on July 8 and 9. Again there were no results.
The Union held its annual convention in Chicago late in July and the parties took
advantage of the occasion to meet in another all-day session on July 16. Here their
differences were reduced very largely. Although there still remained discord on
10 or 12 items, Plopper made clear to Scheidt towards the end of the meeting that if
the Company would yield an across-the-board wage increase in the first year, and use
its influence to counteract the decertification petitions pending, settlement would
result. The next day the Respondent reported it could not interfere with the peti-
tions, disclaimed all responsibility for them, and again refused any blanket raise the
first year. By this time picketing had started at a number of locations.
At the close of the July 17 meeting the Union asked Scheidt to reduce the Com-
pany's last offer, as it then stood, to writing. By letter dated that same day Scheidt
did so; his letter also stated that as of that day the Respondent withdrew recognition
from the Union at a number of locations "where a decertification petition filed by the
employees is pending with the National Labor Relations Board," and listed 25 such
stores and locations.
The next and last bargaining conference took place at a hotel in Chicago on
August 5 and 6, a Federal conciliator in assistance. Plopper was accompanied by
the regional vice president; there were also in attendance a large number of union
agents or executive secretaries from local unions everywhere. The area of disagree-
ment was pinpointed. At the end of a second day of discussions, the Union offered
a compromise aimed at final solution. It suggests an across-the-board wage increase
of 5 cents for only those employees who had been more than 6 months with the
Company, or who were not included in the list of individuals for whom the Company
was offering merit raises. Scheidt rejected both proposals. The union committee
then said it would refer the last offer for a vote to all its local union representatives
who were gathered there, with no recommendation on whether to accept or reject.
Scheidt then reiterated that he was not bargaining for those stores where decertifica-
tion petitions were pending, that in the event the employees at any store voted to
accept the offer, the benefits involved would be put in effect immediately, even though
in some locations new contracts would not be made until a later date due to other
expiration dates, and that as to the locations where recognition had been withdrawn,
everything must await resolution of the majority question.
The union representatives voted to accept the Company's offer and Plopper
promptly so advised Scheidt, with the understanding that the terms agreed upon
would then be voted on by employees in each store affected and the Company kept
advised as the results became known. Plopper and Scheidt also agreed that the
contract language would be drafted by the Company, and submitted for approval
to Vail, of the California group, as he had participated more extensively than any
other union agent in detailed talks while the complex terms had been ironed out.
Soon ratification meetings were held in practically all the stores in which the Com-
pany had not withdrawn recognition. It took until October for Vail and company
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representatives to settle the precise contract language, until finally, over a period of
months extending into the early part of 1964 , contracts were signed in a number of
stores. Wherever the ratification votes were favorable , most of them toward the
end of August , the substantive terms of the new agreement were put in effect
immediately, although the contract itself was not signed until later . In those situa-
tions where the existing contract did not expire until later , the economic terms, i.e.
those not related to union security, were also given then and there , and the remaining
provisions put in effect when the replacement contract was executed.
4. The company elections in August
By mid-August petitions had been filed in all but a very few of all the 39 stores
named in the complaint . The first charge , asserting a companywide scheme to bring
about the petitions , was filed in July; it was soon followed by supplemental and
amended charges of the same kind. In view of the pending charges action on all
the petitions was suspended, in keeping with established Board practice , until the
merits of the alleged unfair labor practices could be investigated.
By August 22 there were petitions for 34 stores and an RM (employer petition)
in the 35th store-Baker. Of the remaining four stores, decertification petitions were
filed on September 6 at DuBois and Royal Oak, and on November 11 at Mr. Vernon.
None was filed at La Junta.
Starting on August 22 and continuing through August 27 the Respondent held its
own elections among the employees in 26 of the 35 stores for which petitions were
then pending . As to the remaining nine, in five the decertification petitions had been
filed but recently: Salisbury August 5; Southgate August 21; Royal Oak August 12;
Sacramento August 5, and Pittsburg August 5. Shortly before August 27 the General
Counsel brought an injunction proceeding in the Chicago Federal District Court to
enjoin further such elections by the Company. Of the remaining four locations
where petitions were pending , in two-Ponca City and Las Vegas-the Board's
Regional Director had conducted Board elections , and in the other two the existing
contracts were not due to expire for some time-in Chico until January 1964, and in
Pueblo until February 1964.
The decision by the Respondent to conduct its own elections was a policy determi-
nation in which Labor Relations Director Scheidt directly participated . Without
advance notice as to the purpose of the meeting , the employees were called together
in each store , usually the furniture department , either before or during working
hours, but always paid for time so devoted. In each instance the meeting was con-
ducted by a visiting company official from Chicago or some regional administrative
office, and always the store manager or assistant store manager was present . Ballots
were distributed and marked by each employee in some corner of the room. The
ballots asked whether the employee "wished to be represented for purposes of collec-
tive bargaining" by the Retail Clerks Local Union involved. In each case an out-
sider-bank official, police chief, publisher , etc.-was invited to handle the eligibility
list and count the ballots . A representative of the local union was in most cases
asked to be present, but again with no advance notice of the purpose of the meeting,
to express any views he wished ; rarely did anyone speak.
The visiting management representative proceeded by reading a 14-page document
prepared by the labor relations director in Chicago in collaboration with the
Respondent 's board chairman . The first four pages were identical at all locations
and read as follows:
I am here today to talk to you about the status of the Company's relations
with the Retail Clerks Union, and the course of action the Company intends
to follow.
As early as January of this year the Company proposed to establish several
new benefit programs to be effective on June 1. Meetings were held during the
Spring at which these benefit improvements were explained to the employees,
both at locations where the employees were represented by a union and at loca-
tions where there was no union. Also, the Company's proposal was explained
to and negotiated with the unions at those locations where the employees have
chosen a union as their bargaining representative.
Other unions-that is, unions other than the Retail Clerks Union-accepted
these new benefit programs as a part of a total contract prior to June 1. Conse-
quently, the entire program is now in full effect, and has been since June 1, for
all Montgomery Ward employees , both union and non-union , at all locations
except those few where the Retail Clerks' Union represents or claims to repre-
sent the employees.
MONTGOMERY WARD AND CO., INCORPORATED 1237
On the other hand, negotiations with the Retail Clerks Union were prolonged
and no agreement was reached with this union prior to June 1. Consequently,
the new benefits could not be made effective at the locations where this union
claimed bargaining rights.
Within the last two weeks, however, the Union's Bargaining Committee advised
us that meetings of employees would be held to vote upon the Company's pro-
posals for a new contract. The Committee, as well as the local union repre-
sentatives have recommended acceptance of the proposals and we are currently
receiving acceptances from the local unions as these meetings are being held.
At about 35 of the locations originally involved in the bargaining with the
Retail Clerks Union, employees of the stores filed decertification petitions with
the National Labor Relations Board seeking an election to determine whether a
majority of the employees wished the Union to continue to represent them.
These decertification petitions, along with other circumstances, raised a substan-
tial question as to whether the Union still was the choice of a majority of the
employees as their bargaining representative in this store. We notified the
Union of our doubt as to their majority status and declined to bargain further
until the question of majority representation was decided by a National Labor
Relations Board election.
Normally, such elections are held within a short time and the issue is resolved
promptly. The Union, however, then filed unfair labor practice charges, which
have the effect of delaying the holding of an election until the National Labor
Relations Board has investigated the charges. The principal basis of the charges
is the allegation by the Union that the Company coerced employees into filing
and supporting the decertification petitions. While the Company does not
believe it has committed any unfair labor practices and welcomes any investiga-
tion the Board may care to make, we regret that the election will be delayed
until all the charges have been completely investigated.
While we believe you should have a right to decide by a secret and official
vote whether or not you wish to continue to be represented by this union, it may
be months before this is accomplished.
The Company believes it is unfair to longer delay making effective in these
stores when a decertification petition has been filed, the benefit programs and
other improvements the Company wishes to make. Accordingly, we asked the
Union to agree that these benefits might be made effective immediately, subject
to the results of the decertification election which would be held by the National
Labor Relations Board at a later date. The Union, however, flatly refused to
agree to this.
Under the law, as we understand it, the Company can make these benefit
programs and other improvements effective here in the store immediately if
the Union is not the choice of a majority of you as your bargaining repre-
sentative. On the other hand, if a majority of you desire the Union as your
representative, then the Company cannot make these changes effective without
first bargaining with the Union. Now, of course, only you folks in fact know
whether or not you wish the Union to be your representative. We know that a
decertification petition has been filed, because of this and other circumstances,
we question whether or not a majority of you do wish this Union to represent
you.
One fact is certain. Because of the uncertainty over whether a majority of
you do in fact want this Union as your representative, coupled with the fact
that there may be a long delay before the National Labor Relations Board holds
an election, you are being deprived of the new benefits programs and other
improvements which the Company wants to put into effect here in this store.
This is what we propose to do:
A secret ballot election will be held immediately after I conclude my remarks.
You may vote either for the Union or against the Union. If from the results of
this election it appears to us that a majority of you no longer want this Union
to represent you, we will put the new programs and the other improvements in
effect immediately. If, on the other hand, it appears to us that a majority do
want the Union to continue as your representative, we will immediately offer
to sign a contract with the Union incorporating the same programs and other
improvements. The proposed effective date of the changes in either event would
be the same. You should not believe in any way that by means of the election
we are encouraging you to vote one way or the other. In fact, there should be
no benefit to you one way or the other insofar as the benefit programs and other
improvements are concerned. Our desire is only that you be permitted to enjoy
the new programs and this is the only means we know which we can take to
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
permit their installation without an extended delay. Our concern is simply to
determine whether or not you wish the Union to continue to represent you at
this time.
So that you understand what the new benefits programs and other improve-
ments I am talking about are, I would now like to review with you the main
provisions of the proposals made to the Union which are presently being accepted
at other locations where this Union represents employees.
The written script continued with a detailed restatement and explanation of the
"three giant steps," the revised insurance, retirement, and savings plan. There then
followed a further minute recital of the changes in working conditions which were
included in the proposals which, in the intervening period, the Respondent had offered
the Union at the various negotiation sessions , and which had formed the basis of
the national settlement reached in Chicago on August 7. These included revisions
in vacation plan, selling employee compensation plan, layoffs, wages, merit wages,
and miscellaneous "improvements." The analysis, in addition to setting out the facts
of what the Company was offering, included a number of statements of the various
ways in which the employees would be better off with the new "benefits" than they
had been before. Toward its close, the prepared statement contained this language:
So there will be no confusion, I want to again restate the situation. If a
majority of you do not want this Union to represent you, we will put the new
programs and other improvements into effect immediately. If a majority of
you do want the Union to continue as your representative, we will offer to sign
a contract with the Union immediately incorporating these same programs and
the other improvements. In this latter event, the contract also would include
any other provisions which the Union might demand and the Company agrees to.
The results of the 26 elections held by the Respondent were: in 15 stores the
employees voted against the Union; in 9 they voted to retain the Union; in 2 the
results were inclusive.
D. Analysis, subsidiary related facts, and conclusions
1. First considerations
This case calls for decision on whether the Respondent's refusal during 1963, to
bargain with various locals of the Retail Clerks was a lawful exercise of its right to
discontinue recognition of a bargaining agent when there is an honest doubt of
majority status, or whether instead its total conduct reflected illegal rejection of the
duty to extend to the chosen agent of its employees the unqualified recognition which
Section 8(a)(5) of the Act dictates. The burden, as always, is upon the General
Counsel to prove the latter allegation affirmatively, with a preponderance of the sub-
stantial evidence on the record as a whole.20 Because of the character of the main
issue, and in view of the record as it stands, some preliminary comments are required
for clarity of discussion and conformity with law.
(a) It is in the nature of human conduct that short of overt confession of guilt
the state of mind can only be shown by reference to collateral and related behavior
which points, more or less persuasively, either to a lawful and proper motivation, or
to a dishonest and deceitful intent. Proof of ulterior or evil purpose in the doings
of men is therefore necessarily indirect and circumstantial, with the indications
appearing in diversified words and acts having both qualitative and cumulative weight.
It is for this reason that the basic allegation of the complaint in this case stands or
falls depending upon whether or not those activities of the Respondent upon which
the Government relies support and require a conclusion that the many refusals to
bargain reflected fundamental rejection of the principle of collective bargaining which
the National Labor Relations Act imposes upon employers as a sine qua non of the
right to engage in interstate commerce. These activities, or course of conduct, are
for the most part openly conceded, or in large measure established beyond possi-
bility of dispute in the oral and written admissions against interest by company agents.
There are other facts, proved by the Respondent, lending support to a contrary
inference of propriety in the decisions to withdraw recognition from so many local
unions at the time of the events.
(b) As worded in the complaint, and as discussed in many past decisions in this
area, the question is phrased as whether the Respondent acted in good or bad faith.
Sometimes this is called a question of fact, sometimes one of law; the distinction, if
there be any, is not determinative. What is significant is that this is the question
raised by the pleadings, litigated throughout the hearing, and to be decided now.
90 Glen Raven Silk Mills, Inc., 101 NLRB 239.
MONTGOMERY WARD AND CO., INCORPORATED 1239
Of greater importance is the distinction, in terms of what the record contains,
between what is fact and what is opinion, or argument, or conclusion. Because in
this case the reasons underlying many of the critical acts shown to have been com-
mitted merged inseparably into the heart issue of the case, sworn testimonial state-
ments by any individual representative of the Company as to why he did this or
that, may not, and cannot be viewed as establishing the fact, or conclusionary findings,
as to what his reason was. Such statements, although uttered in the formal setting of
sworn answers to examination on the record, are only oral reaffirmations of the
denials, set out in the Respondent's answer, of the conclusionary allegations of the
complaint. Regardless of whether the end question of motivation be considered one
of fact or of law, the facts upon which the decision eventually rests must be only
those things which, on the basis of competent and probative evidence, are shown to
have been said and done. In the context of this case, arguments and contentions,
no matter under what guise made part of the record, cannot serve to detract from
or alter the objective basis from which inferences are to be drawn.
(c) All this notwithstanding, the nature of the main question made it inevitable
that much oral testimony, as well as voluminous documents, were placed in the
record although they neither prove asserted facts nor truly pertain to the real issue.
Repeatedly the General Counsel argued that while the surface appearance of circum-
stances-decertification petitions filed by and in the name of employees-may seem
to justify the subsequent refusals to bargain, other facts which he offered to prove
would serve to establish the existence of another, hidden or unarticulated motive.
With broad latitude thus necessarily given the prosecuting side, fairness required no
less freedom to the Respondent to prove, as it wished, whatever facts it believed
would negate the inference of illegal motive sought by the complaint. Indeed any
Respondent accused of bad faith in its affairs is entitled, as a minimum, to unfettered
opportunity for self-exculpation. To assure the Respondent this fundamental and
just privilege in this instance, the General Counsel's continuing objections to ques-
tions calling upon the Company's chief labor relations director to explain why he
decided, at any given time, to refuse to bargain, were consistently overruled.
Labor Relations Director Scheidt played the lead role in the Respondent's decision
when it refused to bargain further with respect to 34 different stores. His explanation
of his reasons spans all or a good portion of five successive hearing day transcripts
at the close of the case. This constituted the essential defense to the complaint and
the principal effort to rebut the inference of unlawful purpose which the General
Counsel contends must arise from the related facts which, up to that point in the
hearing, had been proved on the record. Scheidt appreciated the import of the
proof of such facts as the speeches he ordered, the decertification brochure he dis-
tributed, the widespread assistance and encouragement which store managers had
given employees towards decertification, and other no longer controvertible evidence
of activities by company representatives. He therefore sought to minimize his reli-
ance, in 1963, on the many decertification petitions which had been filed, and
asserted that there were other facts, of which he was aware, which were pertinent,
which he had considered on the question whether there then existed real questions
concerning representation, and which, considered together with whatever other facts
the record may reveal, serve to explain his actions as a reasonable, logical, and not
illegal course of conduct.
The reasonableness of his conduct in view of what facts the evidence has in truth
established, the likelihood, in the light of human experience generally and of expert
knowledge in this field especially, that those proven facts were indeed his substantive
considerations, are matters properly to be considered, and will be discussed below.
What facts his running commentary from the stand and his file documents prove, as
a matter of evidence, however, is a different question. He spoke in great detail of
things which he said he knew had happened in the many stores during 1963, 1962,
and even 1961, which employees all over the country had done and said, which
many store managers had seen and heard and then told him-in person, by long
distance telephone, in written reports, through company officials or Scheidt's agents
who had visited the managers. All these statements of Scheidt from the witness
stand were pure hearsay, always at least once removed from the asserted facts, very
often two or three times passed from mouth to mouth before offered as evidence by
him. In constant refrain he candidly admitted that of his own knowledge he knew
nothing of all these matters. Neither his hearsay testimony nor the documents
on which he said he relied and which he offered into evidence were received as
proving the truth of the matter so allegedly reported to him. Clearly all parties
were told by me on the record again and again that such "evidence" was not being
received as proof of the asserted facts.
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the risk of seeming to belabor the point, it is of utmost importance in this
case to clarify the conclusion, here made, that none of the facts said to have been
reported to Scheidt have been proved on this record. An underlying theory of the
Government is that when the employees turned against their union in 1963, both in
starting decertification petitions and in voting against it in August when the Com-
pany itself polled them, they did so essentially because the Respondent illegally
coerced them into such acts. Scheidt wanted to prove that their antiunion tendency
long antedated these events. If there were truly proof of such desires or steps on
the employees' part, these would certainly be factors to be considered. There is
danger that too hasty a reading of this long record by a reviewing authority might
mislead the reader into accepting the hearsay as fact, if only because, in reporting the
story for 36 separate stores, Scheidt kept parroting the same indirect story again
and again.
(d) This hearing rested upon a single complaint issued against a single company
Respondent. Although the activities, collectively, said to prove the basic unfair
labor practice charged, occurred at 39 separate locations, the theory of the case is
that the entire pattern of conduct was conceived and executed through a central
decisional authority, the Respondent's main labor relations department in Chicago.
It is not seriously disputed that most of the local activities were directed from
Chicago; indeed, in most instances it was high company officials, either stationed
there or in regional administrative offices subject to direct Chicago supervision and
instructions, who journeyed to the various stores for the very purpose of committing
the major acts said to prove the single illegal objective.
As the principal activities said to reveal the nationwide antiunion scheme occurred
almost simultaneously in distant parts of the country, charges were filed by local
unions in different regional offices of the Board at about the same time. As these
were also simultaneously being investigated, necessarily it was sometime before the
pattern of the Company's activities emerged and came to the attention of higher
officials of the Board. In consequence of the time thus administratively consumed in
the development of the national picture, some Regional Directors processed decerti-
fication petitions without knowledge of their relationship to facts which were being
developed elsewhere; others suspended all action on the petitions as charges were
filed in the same Regional Office or as they learned of related charges filed elsewhere
In two instances-Ponca City and Las Vegas-decertification petitions even went to
a Board election, but before the proceedings were completed, on advice from the
Board's central office in Washington, they too was interrupted and those locations
made part of this single nationwide proceeding. In due course all charges, regard-
less of where filed, were referred to the Board's Chicago Regional Office and merged
into this single case.
The Company has long made it a policy not to extend recognition to any local of
the Retail Clerks except on the basis of a Board election in regular separate repre-
sentation proceedings, and in virtually all of the stores involved recognition and the
subsequent contracts rested upon separate Board certifications in single store bargain-
ing units. Resting in part on this fact-that bargaining has been predicated upon
separate store units and separate Board certifications-and the fact that for a time,
at least, a number of the decertification petitions filed in the summer of 1963 were
processed up to a point by one or another Regional Director, the Respondent
advances a contention in defense that warrants consideration now so that correct
appraisal of the case as a whole can better be understood.
The Respondent argues that whenever a Regional Director proceeded with any of
the usual administrative steps towards processing a decertification petition filed, he
thereby recognized its validity. In some instances a notice of hearing was issued,
indicating that the Regional Office was satisfied with the adequacy of the showing
of interest, or absence of contract bar, or expiration of certification year. The con-
tention is advanced that the Respondent had a right to rely upon the particular
Regional Director's action as grounds to withhold further recognition from the local
union involved, and that therefore its refusal to bargain must be excused. An under-
lying and broader predicate for this pinpointed defense is that the entire proceeding
should be viewed as a series of separate, unrelated incidents or employer-employee
relationships, as though at each store there had been an independent, completely
autonomous union and a distinct, individual employer having no connection what-
ever with any other store in the chain or with the Montgomery Ward main office in
Chicago. The real burden of this argument is that unless it is proved, on the basis
solely of the evidence relating to a single store, that an unfair labor practice was
committed there, the complaint must be dismissed as to that store. This position
was strongly stressed in the Respondent's motion to dismiss at the close of General
Counsel's case.
MONTGOMERY WARD AND CO., INCORPORATED 1241
Looking more deeply into divisive theory of defense, as it were, there appears
the ultimate argument of the Respondent. Just as it insists that a separate, inde-
pendent violation of the Act must be found at each and every location, the Respond-
ent also would have it that no separate act by any of its agents, no speech, no docu-
ment circulated or posted, can be used as partial or cumulative evidence of illegality
unless each act, speech or paper in itself, and in isolation, can be said to constitute
an independent unfair labor practice. The net effect of this total defense, in the
context of this overall case, is an attempt to evade the logical principle of circum-
stantial evidence, which recognizes that there can be a variety of resemblances so
combined as to bear upon a single point and lead to an inescapable conclusion.21
The argument that each separate store location, and each decertification petition
filed, should be appraised without consideration of the remainder of the record, is
rejected. Acceptance of this argument would excise from the record the singleness
of purpose in the Respondent's centralized and integrated operations, the combined,
multistore collective bargaining that led to the 1958 contracts in most of the stores
and that was in progress again in 1963, and the necessary complexity of the adminis-
trative enforcement structure of the National Labor Relations Board. The Act vests
in the office of the General Counsel, in Washington, D.C., ultimate authority to de-
cide when and where to issue complaints in unfair labor practice cases; the Regional
Directors are agents of the General Counsel and subject to his supervision in proceed-
ings of this kind. The lines of communication among the various regional offices
funnel through the common touchstone that is the Washington central office itself.
Inevitably, where the operations of a single employer are dispersed throughout the
country and there is a common denominator shedding light on occurrences in wide-
spread locations, the piecemeal information revealed by local investigations following
separate charges must first be collated at a focal point before the true significance
of one company's activities can be intelligently evaluated. If in an isolated location
or two a regional office took normal action on a decertification petition, or even
dismissed a charge, resting only on what information could be learned locally of
the pervasive conduct of the Company centered in Chicago, or before the total picture
emerged by a single examination of all the field investigations conducted in various
parts of the country, such preliminary determinations are to be expected when a
governmental agency deals with an operation of the magnitude of Montgomery
Ward-the second largest retail enterprise in the United States.
Indeed there is a compelling parallel between the ramified character of the Federal
administration of the National Labor Relations Act, as amended, and this Company's
pipeline control of all detailed functions in its far-flung chain of stores. Labor Rela-
tions Director Scheidt made it a point to emphasize it is he who decides all matters
of labor relations, and not any single store manager. Yet he complained when the
Board's Regional Director in Chicago refused to hold elections on pending decerti-
fication petitions until the broader question of whether they had been inspired by
the Company throughout the country could be verified. He was advised that the
Act must be administered as a centralized, single purpose agency of Government.
And when he changed his mind as to several of the stores where he had previously
refused outright to bargain, and requested that as to those particular ones elections
be held by the Government, he was impatient with the administrative decision to
continue to view the case as a whole. It ill behooved him to say, from the stand, that
there was "prejudice on the part of the National Labor Relations Board against
Montgomery Ward in any action that it might take with regard to the locations
involved in this case...." It is too late in the day for the representative of so large
a company to defend illegal conduct, if illegal it was, on the ground that Government
has no right to insist upon applying the laws coherently and intelligently, albeit from
a centralized, distant office like the Nation's Capital. Certainly the fact that the
General Counsel insisted on fleeing the employees from the alleged coercive conduct
of the employer before holding any election, cannot excuse the Respondent's conduct
in arrogating to itself the privilege of holding elections and asking the employees to
choose between collective bargaining and immediate improvements in their working
conditions.
si See, Justice Frankfurter's separate opinion in N.L R.B. v. Insurance Agents' Interna-
tional Union, AFL-CIO (Prudential Ins . Co.), 361 U.S. 477, 506:
Activities in isolation may be wholly innocent, lawful and "protected" by the Act,
but that ought not to bar the Board from finding, if the record justifies it, that the
isolated parts "are bound together as the parts of a single plan [to frustrate agree-
ment]. The plan may make the parts unlawful."
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The illegal refusals to bargain
On the record in its entirety, including what has been reported here and the
many evidentiary details too numerous and cumulative to warrant restatement, I
find that the Respondent's refusal to bargain further with the Union with respect to
34 separate store units, was not based upon a good-faith doubt of continued majority
status, but reflected instead a companywide program devised and implemented for
the purpose of eliminating the Union as a spokesman for the employees, and that
its total conduct proves a pervasive intent to deny to the Union the agency status
accorded by the statute and to the employees the right to self-organization guaranteed
by law. I also find that, with respect to four locations where there was no literal
refusal to bargain (Southgate, Royal Oak, Pittsburg and La Junta) the Respondent
violated Section 8(a)(5) of the Act by those activities which were intended to, and
necessarily had the effect of improperly coercing the employees into abandoning their
adherence to the Union.
The principal acts of the Respondent pointing to an intent to undermine the
Union's representative status fall into three general groups: (1) the May benefits
speeches, given in most of the stores involved and followed forthwith by decertifica-
tion movements; (2) the widespread encouragement and assistance given by store
managers and other agents of the Company to employees who started to take action
towards decertification; and (3) the 26 company elections in August, in 15 stores
followed immediately by unilateral grant of improved working conditions to the
employees, and in 9 by invitations to bargaining which placed the local unions in
untenable positions as effective spokesmen for their members. The claim that the
August elections were aimed solely at ascertaining whether the employees wished
to be represented by the Union-assuming such interrogation is proper in the circum-
stances-is effectively weakened, if not totally destroyed, by the preelection speeches,
which in effect converted the question into a choice between better working condi-
tions now and union representation. The May speeches, and their necessary, or
intended effect, can best be appreciated in the light of other facts bearing a relation-
ship to that conduct, facts which, the Respondent knew, also affected the employees.
When these collateral matters are considered, the contention that the Company did
no more than keep its employees advised of the course of current collective bargain-
ing loses practically all persuasion.
a. The benefits speeches in focus
Having determined in 1962 to institute its new benefits program throughout the
chain, and aware that as to those employees who were organized their unions must
be consulted, the Company decided to deal with the Teamsters first. That union
represented about 22,000 of the overall employment complement of approximately
80,000 persons. The Teamsters locations included 10 mail-order houses, a few
attached retail stores, and 44 straight retail stores, exactly like those represented by
the Retail Clerks. In these regular independent retail stores the Teamsters repre-
sented about 4,000 employees, while the Retail Clerks, in about 80 such stores, repre-
sented approximately 5,500 persons. After preliminary talks, real bargaining sessions
with the Teamsters took place late in March 1963. and agreement was reached by
April 9. As set out above bargaining with the Retail Clerks began in San Francisco,
for the group of stores comprising the southwestern region, on April 2, and proceeded
with little delay through May. Like meetings took place in other cities also in May.
From the outset the Company conceived the thought that all employees should
eventually view the new benefits program as an improvement in their situations, react
with greater appreciation of what the Company was doing for them, and in the end
devote themselves more earnestly towards improved work performance. It also
deemed it essential that the employees should be enthusiastic in the matter, because
portions of the program-such as profit sharing and greater retirement provisions-
required voluntary participation. Towards these ends it embarked upon a scientific
"teaser" program to arouse their curiosity and create an emotional anticipation in
the stores. The campaign started with equivocal references in its monthly newspaper,
"The Forward" informing employees of good things to come but deferring any defini-
tive information. These were followed, during April or earlier, with large, colored,
and dramatic posters on the walls of the lounges or restrooms of the stores "A
GIANT STEP FOR YOU," "DON'T MISS YOUR GIANT EMPLOYEE BENEFIT
RALLY COMING SOON," "THE FORWARD LOOK AT MONTGOMERY
WARD," "ONE FOR THE MONEY, TWO FOR THE SHOW, AND ON THREE
WE GO." Labor Relations Director Scheidt described these posters as part of the
Company's "hard-hitting effective program that would arouse the emotion and stimu-
late the employees."
MONTGOMERY WARD AND CO., INCORPORATED 1243
With all this introductory excitement concluded, the Company proceeded in April,
after the settlement on new contracts had been reached with the Teamsters, to hold
meetings in all of the 800 stores except Retail Clerks locations. Now benefits speeches
were given, exactly like the ones made in the Retail Clerks stores later in May, except
for the introductory statement, set out above, which called attention to the complica-
tions and delays following upon the existence of the Retail Clerks as bargaining agent
in these particular stores. The Company had originally planned to announce the
plan to the employees and put it in effect earlier, but the delay until March in the
Teamster negotiations had forced postponement of the intended action. The employ-
ees were told the benefits would go into effect on June 1, detailed booklets precisely
outlining the new plans were distributed to each person, and all were invited to fill in
application and participation cards for payroll office use. The June 1 date particularly
fitted the Teamsters locations because, like the Retail Clerks stores, the new Teamsters
contracts would take effect on that day.
The May issue of the company newspaper, The Forward, distributed in all stores as
usual, repeated substantially the terms of the new benefit program and stressed anew
the June 1 effective date. Six full pages of that issue of the newspaper were devoted
to emphasizing the improved working conditions resulting from the Company's
largess. The record also shows that through those normal channels of communica-
tion whereby employees of any large organization quickly learn what happens at
other places, employees of many Retail Clerks stores soon heard that the speeches had
been given in most of the stores, that others would receive the benefits on June 1, and
that the Teamsters had come to terms with the Company on contracts including
all these innovations. Witnesses spoke of neaiby stores where the April speeches had
been given, of proximity to regional administrative branches of the Company where
office employees had been told of the benefits, and of other aspects of grapevine news.
Late in May the speeches were given in the Retail Clerks stores. By this time
many bargaining sessions had been held at San Francisco and other cities, and the
area of disagreement had reached the point where it began to appear clearly that a
major obstacle to settlement was the Union's insistence upon an across-the-board
increase for all employees during the first year of a new contract. The Company
adamantly refused to yield, holding firm to its original offer of only selective, individ-
ual merit raises for named employees in each store. A fact of significance in consider-
ing the Respondent's conduct in these speeches is that, unlike its adamant position
towards the Retail Clerks on this demand, its settlement with the Teamsters did
include, in the form of an original offer by the Company, an across-the-board hourly
raise immediately.
With the foregoing as the setting in which the benefits speeches were made, it is
not surprising that the reaction was a widespread movement to "get rid of the union,"
as so many employees quickly told the speaker in a great many stores. And it is a
virtual admission by the Company's labor relations director that this is precisely the
development which he anticipated and counted on. He testified that about May 15,
he wrote the three-page introduction to be used by each speaker as a preliminary to
explaining the benefits the Company wished to give these employees. The most sig-
nificant message contained in those paragraphs was that because of the presence of the
Union in these stores, "unfortunately" the benefits would not be given at this time; he
stressed the fact that where there was no union, June 1 was the day to "go"; he even
emphasized the fact that, unlike the Retail Clerks, other unions had agreed to the plan
and employees represented by such organizations would quickly enjoy the improve-
ments. But a day or two before drafting this message to the employees, he carefully
wrote the decertification brochure for use by each of the speakers. It was put in the
hands of every speaker, and Scheidt testified: "It was my intention that they be
familiar with the contents of these documents in case employees made inquiries per-
taining to the subject matter of those documents."
There can be no question he knew the timing of the speeches, together with the high
pitch of desire that had been created in the minds of the employees by the teaser
campaign, and the blame which the speakers placed upon the Retail Clerks for what
they called an unfortunate delay, would provoke decertification sentiment. Does his
total conduct also show that his purpose was to bring about this attitude? Is there a
substantive distinction between inevitable, necessary or expected consequences, and
intended results? 22 While the speakers were leading the employees into thinking
the Retail Clerks responsible for their special treatment and denial of benefits, and
holding the Teamsters out as a more agreeable labor organization, Scheidt was refus-
ing to the Retail Clerks one of the very concessions which he had always been willing
to give, and in fact had given to the Teamsters. Like any other employer, the
Respondent was under no obligation to offer the same terms to one union for some
22 Radio o fficer's anion (A. H. Bull Steamship Company) v. N.L.R.B., 347 U.S. 17.
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of its employees that it saw fit to propose to another. But having chosen to favor
the Teamsters in its treatment of the same class of employees doing precisely the same
kind of work, was it good faith on Scheidt's part to contrast the action of the two
unions in the eyes of the employees so that the Retail Clerks would appear as an
impediment to the interests of its members?
It sits poorly in the Respondent's mouth now to explain these speeches as being
compelled by the aroused curiosity of the employees, by the need to quiet a disturbed
morale, by the Union's failure to keep its members informed of the employer's pro-
posals in the bargaining that was going on. The curiosity had been engineered by
the Company itself; if the employees were peculiarly sensitive to any impediment to
immediate enjoyment of the long-heralded benefits, it was the Respondent which had
created the atmosphere. Despite the length of the record, there is a minimum of real
evidence of any morale problems in the stores, most of the "proof" of this assertion
consists of hearsay evidence by the labor relations director and by the chairman of the
board that reports had been received orally from managers of employees inquiring
about the benefits program. Against this there is considerable direct testimony by the
very employees who started decertification movements to the effect that they were
provoked by the benefits speeches. And as to the charge now that the Union was
responsible for what the Company did in May, there was no obligation upon the
Union to further the Company's desire to convince the employees of their employer's
generosity.
But even accepting these broad assertions at face value they serve little to strengthen
the defense, for the case law cited by Respondent is inapposite. There is nothing
wrong in an employer advising employees of the course of collective bargaining, or
explaining to them the terms of its proposals to their union. Had the Respondent
limited itself to such objective statements of fact to the employees, a different question
would be presented. In the very case cited in defense, the correct and applicable
principle of Board law is set out, and the employer's report to his employees was
found to support the conclusion of illegal conduct. In Fitzgerald Mills Corporation,
133 NLRB 877, the Board said:
While an employer may report to its employees the history of the negotiations
with their representative, the cases so holding are clearly distinguishable from
the situation here in that none of them involve reports which in their context
and in the context of events was shown to be unlawfully motivated.
Here the "context of events" includes the decertification brochure each speaker
carried with him in anticipation of the very reaction which followed. It includes the
persuasive indications appearing in the speech scripts, that the Respondent chose to
utilize the occasion to disparage the Retail Clerks, to build on its disparate treatment
of the two major unions and the adverse position in which these employees stood at
the moment, so as to generate a cleavage between them and their chosen representa-
tive. The related events also require consideration of all that the store managers and
other company agents did in direct consequence of the speeches. And, most impor-
tant, the total context demands that the final elections by the Company, in which the
employees were asked whether they wanted benefits, be viewed as what they really
were-bargaining directly with the employees-the benefits in return for a "no union"
vote.
Antiunion sentiment in the heart of employees born out of the simple knowledge of
their bargaining agent's reaction to an employer's attitude, is one thing. A like reac-
tion following immediately upon the unfolding pattern of activities of an employer as
shown on this total record, is something entirely different.
b. Inducement of and participation in decertification activities
At a number of points in their benefits speeches, the speakers were instructed to
call for questions; they did so. Naturally many questions were asked for clarification
of the refinements and individual applications of the new benefits program. As was
also expected, there came, in virtually all these stores, specific inquiries on how the
employees, particularly those who were not union members, could obtain the benefits
now, and how they could "get rid of the union " Fortified in advance with the decer-
tification brochure, in some instances the visiting speakers and in others the store
managers gave much assistance. A great number of the petitions received in evidence
are worded in exactly the phrasing appearing in the decertification brochure, one
including 23 words. The argument is made in defense that all that happened during
this period is that the company representatives responded to inquiries about the
mechanics of Board proceedings, matters that are of public knowledge and that any
employer may truthfully explain without thereby revealing illegal purpose or
union animus. And there were instances where, so far as the record shows, all a
MONTGOMERY WARD AND CO., INCORPORATED 1245
manager did was give a Regional Office address on request, or tell an employee to
communicate with the Board, or simply hand over the decertification brochure.
But this aspect of the case, too, is to be viewed as a total picture, with all of its parts
collectively appraised, for a true appreciation of the significance of the overall pattern.
The particular developments at each store were but the expected development of a
centralized scheme of planned assistance. How this was carried out, therefore,
requires a broader look at events all over the country.23
If the need on the part of employees to inquire concerning Board proceedings, if
the very desire to reject an established bargaining agent, are caused by employer con-
duct, the resultant question and answer become but a component segment of a broader
unified story. In this case, theretore, even the simple act of handing to an employee
the decertification brochure, with no word spoken, must be weighed in the light of
the fact that the benefits speaker had just finished saying it was "unfortunate" the
employees were hampered by the Retail Clerks, that employees with no union were
already free recipients of the gift, and that even those who had other unions were
better off. That the purpose of the unfolding plan was to provoke these questions,
that it really was the Respondent which caused the ostensible "inquiries" to arise, is
also persuasively indicated by management activities over and beyond the unques-
tioned broad pattern of events and the reading of the prepared script. Outright sug-
gestions, or unsolicited advice that employees start decertification movements cer-
tainly stand apart from mere answers to employee curiosity.24
In Carlinville Store Manager Fraser told employee Ringer, before anyone knew
what the speech was going to be about: "Be sure and ask how to withdraw from
the Union." This was more like an order than an answer. When, in the midst of
employee reaction that they would have to "get rid" of the Union before they could
receive the benefits, the speaker at Port Huron said "It was a darn shame" the employ-
ees were being prejudiced, he did more than inform, he inflamed. And so with
Manager Montgomery, at Hillsdale, when the union steward, who could hardly know
what was going on in highly centralized negotiations between the Company and the
Union, was unable to parry the heckling of employees during the benefits speech.
Montgomery threw in "It was a hell of a note" that the Union, which he called a
"small organization ," could "deprive" the employees of the benefits. Store Manager
McVay helped spark the fire in Petoskey by quoting Churchill, as he said. An
employee asked why he could not have the benefits and the speaker answered it was
"impossible" because the Union would not agree. At this point McVay threw in "It
was too bad that so many had to suffer because of so few."
Churchill was above all partisan. Case precedent which recognizes an employer's
right to inform employees of governmental procedures, presupposes a neutral
employer, one who does not himself interfere with the employees' freedom to decide
these matters for themselves. The managers here were whipping up a storm.
The manager at Butler fully explained the procedure to Gallagher, and when she
had received forms from the Government and reported what she was doing to him,
he cautioned her that she was not going about it correctly, that she had to take "step
one first . . . you have to get the percentage of the employees to sign the petition."
He said he would help her again later, and when he went on vacation told the assistant
manager to do that. And the assistant did-into the middle of the night-so that
the formal petition could be mailed at 1 a.m., and avoid more employees striking
their names from the supporting sheet. Hilsabeck, a manager at Maryville, asked one
employee whether he had signed, and added ". . . he wanted me to sign it ... it was
1' Scheidt testified this was not the first time he had written a decertification document
of this kind ; he said he had distributed a similar one in 1962, 1961 , and 1960 to regional
personnel managers. On an earlier occasion , in 1962 , one of these managers responded
to the circular in a letter to Scheidt saying: "It is doubtful that very many Store Managers,
let alone timecard people , know anything relevant as to what they should do to instigate
decertification . If possible , it seems to me a simple one page bulletin should be posted
telling them how to go about it."
In an attempt to prove that his purpose had been misconceived by that particular
manager, Scheidt presented a letter he had sent in reply, telling the manager not to do
that. But what is significant here, and what is clearly indicated by that manager's
reaction to such a document placed in the hands of company agents, is the normal reac-
tion of the agent. In that man's mind such precise instructions on how unions are
removed from any store, were tantamount to a suggestion that he do something about
it. For Scheidt to say, either in a letter written long ago, or on the stand at the end
of this hearing , that he had other things in mind, in no way weakens the natural inference
of what attitudes such documents are likely to provoke in the mind of the recipient.
24 Ridge Citrus Concentrate, Inc., etc., 133 NLRB 1178.
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a chance to vote for the Union or not " The manager's secretary, by permission, typed
the papers for the petitioner at Kansas City, and at Maryville the manager himself
typed the decertification petition in his home. All of this was far more than answer-
ing mere inquiries.
In Merced, in the midst of the decertification activities following the benefits
speech, the manager told employees it was the Company, not the Union, which was
giving these benefits, and that but for the Union there would have been bigger and
more frequent raises. The Chico manager said to one employee "It was too bad" the
employees could not enjoy the improvements until the Union agreed, and to another
that the benefits looked "pretty good," but "unfortunately" the presence of the Union
prevented his discussing the matter.
At two cities employees expressed disappointment. In Petoskey one asked what
could be done to obtain the benefits, and the manager's answer was "ask for a decerti-
fication petition." He did not say the employees could also take up the matter within
their union. At Las Vegas an employee reacted to the benefits speech by saying
simply he did not think it was "quite fair" to the employees. The speaker's answer
was to suggest that most of the employees would rather not have the Union "now."
Here the managers answered no questions; they directly planted the decertification
idea in the employees' minds.
Dowland, a supervisor at Carlinville, solicited all the signatures to a petition.
Canney, the clearest supervisor of all, obtained signatures and filed the decertification
petition in his own name at Meadville. At Punxsutawney, Cowan, also a supervisor,
visited employees at home to solicit antiunion signatures. Florence Smith, the
"supervisor" and credit manager at Port Huron, assisted the decertification movement
and was second to sign the petition. A supervisor at San Luis Obispo, Cope, obtained
all the signatures during working hours and personally filed the decertification peti-
tion . The activities at Merced were also entirely carried on by Qwinn, also a super-
visor, who circulated the supporting sheet and then filed in her own name. All of
this is a far cry from management representatives merely answering questions when
asked.
There are other incidents, proved here and there, which also cumulatively show the
widespread activity to have been a management program as much as employee move-
ment. Farkas, the lead actor among the employees in Royal Oak, kept reporting his
progress to the store manager, who told him, as he FFarkasl kept adding names to his
list, that the Company could do nothing until sufficient signatures were obtained.
When the signature sheet was returned from the post office to the employee at Pueblo,
he asked the store manager what came next, and the manager just said "Leave it with
me," and carried on from there. While the petitioner at Marietta was soliciting
employees in the store, as they worked, the manager asked if he had the petition
"going," and when helping him later in the preparation of the formal document, said
to him: "You are going to complete it and return it, aren't you?" More subtle,
perhaps, but no less revealing , was testimony at Merced. The day after the benefits
speech Greco asked the manager how to get rid of the Union; the manager answered
that someone had already been in to see him, and nothing more. The manager had
already given instructions to another employee who had asked the same question
earlier in the day. This is strong indication that in the mind of the manager decertifi-
cation was a joint effort by himself and the employees, for the real import of his
words was that Greco had done nothing else to worry about because the manager had
already seen to it that the matter of getting rid of the Union would be taken care of.
Certainly his answer belies the assertion now that all the managers did was offer
information requested.
The assistance and encouragement by store managers thus appearing so widespread
and direct, there can be little doubt the managers also knew that much of this solicita-
tion activity went on in the stores and during working hours. Proof of this fact was
mostly indirect, it is true , but so much of it was shown to have occurred during work-
ing hours, with the managers normally spending much of their time in the selling
areas, that a general practice of tacit approval and therefore blessing upon the decerti-
fication activities is proved by the record as a whole. And this aspect of the activities
becomes further evidence of Respondent's liability because generally there is a no-
solicitation rule in all the stores.25 At times, and in certain stores, it was not observed,
z' At the hearing the labor relations director identified the Company 's established
labor relations ' policy as including the statement : "No employee shall distribute union
literature or solicit union memberships on company time, or while the employees to whom
the literature is being distributed or whose membership is being solicited are on company
time" In his brief he makes the flat statement: "Wards did not have in effect any rule
against solicitation during working hours."
MONTGOMERY WARD AND CO., INCORPORATED 1247
even with respect to visits by union organizers. But it is of no little significance that in
a number of stores, during the very period in question-mostly June of 1963-nothing
was done to curb the decertification activities, while the no-solicitation rule was in
fact enforced against union agents seeking to combat the movement. Many managers,
while enforcing the rule against union agents, or against prounion petitions, paid
little or no attention to complaints that the decertification petitioners were violating
the rule.
c. Inducement and encouragement of employees to resign from the Union
It was for the most part during late May and the month of June that the employee
activities supporting all these decertification activities took place. On June 4 the
Respondent distributed a formal notice to all Retail Clerks' stores publicizing the
fact the contracts had expired and the employees were no longer obliged to remain
union members or pay dues. The statement is factually and legally impeccable. It
also announced that the Company would, for a while at least, continue to check off
dues for any employees who chose to continue the arrangement. The Respondent
was not obligated to continue this service to the Union in any of the many stores
where the contract had expired; and the fact that it was willing to do so is a matter
which tends to negate the broad contention that its basic attitude was anti-Retail
Clerks.
Against the proper inference, however, there is evidence of how the notice was
utilized, in a number of stores at least, as a further means to encourage defections
from the Union. It was posted on the bulletin board in certain stores, how many is
a question because so many managers who received it said they could not "recall"
whether this had been done. But there is much evidence of how a number of man-
agers used the notice to induce resignations and, indirectly, decertification movements.
Manager Thompson, at Butler, told several employees that if they desired to dis-
continue the checkoff they should write directly to the Union, and Hilliard, assistant
manager, advised employees that to terminate dues payments there "would have to
be a withdrawal" from the Union. Sterritt, manager at Meadville, called six employ-
ees individually into his office after having posted the notice, told them to read it,
and explained to each what it meant. Manager Somers at Muskegon asked an
employee if lie "wouldn't like to withdraw from the Union ... save $3.50 per month
union dues," and to let him know if he decided to do that. In this same store Alice
Burr, a clerk, resisted the urgings of other employees to resign her membership and
told Store Manager Kunze of her fears; he told her time was of the essence, and
that quitting the Union was like a raise by saving on the dues payments. She then
requested discontinuance of her checkoff, but Kunze advised her to add that she
"no longer wanted to be represented" by the Union, and she followed his advice.
Manager Richardson, of Maryville, spoke to three employees individually about
the posted notice. He told two of them that they could discontinue dues payments
it they wished. He first asked employee Kunkel to read the notice, then virtually
ordered him to do so, and when the man voiced his indifference to the idea, threat-
ened him with "it's been nice knowing you." The assistant manager asked one girl
would she "enjoy paying union dues for nothing." In Merced the assistant manager
told an employee she no longer needed to pay union dues, that he had a letter that
said so. When she replied she was still paying, he said she was throwing her $5
per month away. The manager at Salisbury told one employee no one in "his right
mind" would pay $4 union dues when all the benefits they received came from the
Company.
But outright, unsolicited advice and encouragement of employees "to withdraw"
from the Union, or to discontinue paying dues, is hardly the mark of a neutral
employer. Indeed, such conduct of itself is clear indication of positive union
animus and improper interference with employee rights.26 In this case these affirma-
tive proddings of employees to turn against the Retail Clerks takes on especially
persuasive meaning because they came at the very time when most of the decertifica-
tion signature sheets were being circulated.
d. Coe,cive polling of employees
It was during July, by letter dated the 17th that the Respondent informed the
Union of its decision no longer to bargain with respect to a large number of the
stores involved -24 of them. The total evidence is advanced as proving bad faith
over an extended period, but the most direct proof of its intent are the 26 elections
20 Newberry Mills, Inc., 141 NLRB 1167; Kit Manufacturing Company, Inc., 142 NLRB
957; Picket' Chevrolet Sales, Inc., 142 NLRB 23.
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
held at the end of August. Each of these elections constituted a direct unfair labor
practice by the Respondent, in violation of Section 8(a)(1) of the Act, in that they
were coercive upon the employees, and in derogation of the Board's processes, and
in violation of Section 8(a) (5), in that they were the equivalent of direct bargain-
ing with them and therefore an illegal bypassing of their majority representative.
The ballot given the employees to mark compared to that used in Board elec-
tions-it asked did the employees wish to be represented for purposes of collective
bargaining by the local union. Beyond that the election bore no resemblance to a
representation proceeding, and the Respondent's contention that it ought to be
viewed, and in essence given the same validity as any election under Government
auspices, is completely without merit. Repeatedly in this case the Respondent sepa-
rates each and every act of its agent from all others and points to precedent sup-
porting the propriety of the separate deed. This chain of disassociated reasoning
starts with the right to tell employees what an employer is telling their union and
goes on to the right of the interrogation dealt with in the lead Blue Flash Express,
Inc., case.27 To compare what this employer did in August 1963 with the polling
found lawful in Blue Flash and like cases, requires not only that the election be
detached from all other events dating back to May, but also that all that was said
by management at the very moment of the balloting be ignored. It would require a
presumption that when each employee marked his individual ballot he removed
from his consciousness what he had just been told in most eloquent terms. It is
not the purpose of this report to answer the questions constantly asked by the
Respondent as to what an employer may lawfully do; the limit of duty here is to
pass judgment upon what in fact was done, and to weigh it in the light of the case
as a whole.28
The election was held in the presence of management officials, high and low, in
the furniture department of the retail store in most instances. The ballots were
marked in a corner somewhere, where the employees could be seen. Before the
balloting, for perhaps 30 minutes, a visiting management representative spoke to
the employees to explain, in great detail, the revised and improved working condi-
tions which the Company wished to give them. The script for this talk-14 type-
written pages-is in evidence. The first four pages discussed the relationship with
the Union and the fact the benefits were not being enjoyed at this location. And
the burden of the message, repeated in many forms, was that the Union was directly
responsible for this handicap to the employees.
The first point was that the Union was at fault because it had not agreed to the
Company's contract terms. Thus, the speaker started by saying that other unions-
"that is, other than the Retail Clerks Union"-had accepted the benefits, and "con-
sequently" they had since June 1 been in effect in all stores of the Company except
"those few where the Retail Clerks Union represents or claims to represent employ-
ees." He immediately repeated that no agreement had been reached with this Union,
and "consequently" the benefits could not be made effective at the locations where
this Union claimed "bargaining rights."
The next assertion was that it was the Union's fault because it had filed charges.
The speaker explained the relationship between the decertification petitions filed by
the employees and the charges filed by the Union, "which have the effect of delay-
ing the holding of an election until the NLRB has investigated the charges," and
that this might take "months." And again the onus of the delay over the benefits
appeared as a responsibility of this particular Union.
A third reason for responsibility of the Union is then added. The Union was to
blame because it had refused the Company's offer to institute the benefits unilater-
ally right away, while preserving the refusal to bargain position. At this point the
speaker spelled out the alternatives of the moment: (a) the Company could make
the benefits and improvements "immediately if the Union is not the choice of a
majority of you as your bargaining representative"; (b) "If a majority of you desire
the Union as your representative, then the Company cannot make these changes
effective without first bargaining with the Union." After again reminding the
employees that there could be "a long delay" before the Board held an election, and
that the employees were "being deprived of the new benefits program," the script
adds, towards its close, "our desire is only that you be permitted to enjoy the new
program." There then followed a 10-page detailed recital of the benefits the Com-
pany had offered months ago and of the substantive improvements in working con-
27 109 NLRB 591.
23 in Blue Flash, the Board took pains expressly to exclude the situation where "the
surrounding circumstances together with the nature of the interrogation itself imparted
a coercive character to the interrogation ." Compare: Rohlik, Inc., 145 NLRB 1236.
MONTGOMERY WARD AND CO., INCORPORATED 1249
ditions given to the Union that same month but only for those stores where decer-
tification petitions had not been filed. If the question had really been whether or
not collective bargaining, all this had no place in the Respondent's introductory
explanation.
There can be no reasonable doubt that when the employees voted after such an
explanation of what was being done, they were answering the question whether or
not they wanted the new benefits. Occasional phrases in the script-that the employ-
ees were free to vote either way, or that the Company's "concern is simply to deter-
mine" whether the employees wish to continue union representation-cannot begin
to offset the unmistakable, repeated and emphatic explanation that what was really
at stake were the benefits.29 The Board has held, particularly in the coercive con-
text of a promise of economic benefits awaiting the outcome of the result of a poll,
that such an election, while representation petitions are pending before the Board,
are "in derogation of the authority given to the Board to decide questions concern-
ing representations brought before the Board," and illegally intrude upon the right
of employees to have these matters determined by the Board.30 The August elec-
tion also in each instance constituted separate violations of Section 8(a)(5) of the
Act in that they were but another form of direct dealings with the the employees,
designed to result in abandonment of their chosen representative, and evasion of the
statutory duty to deal with the majority agent only. And, of course, the fact that in
many locations the employees rejected the Union, cannot serve as a defense to the
later refusals to bargain 31
3. Defenses
a. Economic need
One broad factual assertion upon which the Respondent largely rests its argument
against the inference of illegal motive is that it did very much want to place the new
benefits plan in effect throughout the chain quickly. During the negotiations it
offered to do this and continue bargaining on all other matters in dispute.32 At that
time the Union refused the interim arrangement; it called this piecemeal bargaining,
and preferred to balance all economic demands and hasten towards a complete new
contract The Union had a right to take this position, for collective bargaining
inherently envisages a relationship among all items in dispute, and the make-weight
value of any single concession towards winning other demands.
There came a time, nevertheless, when the Union proposed another way of satis-
fying this expressed desire of the Company. In April Plopper selected seven of the
Union's demand items and said if the Company would concede these, the Union in
return would agree to immediate institution of the benefits program, and continue
bargaining. Except for a concession on grievance procedures, the Respondent would
not yield on any of these items. And on May 29, lust before expiration of the con-
tracts, the Union offered to agree to quick implementation of the benefits program
in return for a 30 or 60 day extension of the existing agreements. The company
negotiators consulted their Chicago superiors, but the chief negotiator, Scheidt, flatly
rejected the offer. Whatever extenuation, if any, the Union's earlier refusal to per-
mit the separate action can afford the Respondent's later action, is more than offset
by the Company's rejection of the no less reasonable counterproposals of the Union,
had this really been the sole objective of the Company.
More important is the fact that the Respondent did not limit itself to making
changes in employment conditions which, for economic reasons, it deemed urgent.
By the time the May speeches were made in the Retail Clerks stores, there had been
much bargaining, and conceivably, although that question is not presented here,
the Company might have been free, within the law, to make the changes unilater-
ally.33 But this is not what it did, and therefore all of those cases cited in support
The store manager in Alamosa , who assisted in conducting the election , was asked
what the substance of the preelection speech was. He replied: "To indicate their prefer-
ence for the union, or not in favor of the union, with the benefits to be placed in effect
in this store in a reasonable-as all other stores, or most of the other stores."
"Brown and Root Caribe, Inc., 123 NLRB 1817. See also Watertown Undergarment
Corporation, 137 NLRB 287.
31 Medo Photo Supply Corporation v. N.L.R.B., 321 U.S. 678.
33 Several witnesses for the Union sought to deny the Respondent ever made this offer.
Their total testimony, however, shows quite clearly that this proposal was advanced by
the Respondent, both in California and in Pittsburgh.
33 Bradley Washfountasn Co., 192 F. 2d 144; Crompton-Haghland Mills, Inc., 337
U.S. 217.
206-446-66-vol. 154-80
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of an employer's right to make reasonable business changes while continuing to
honor the statutory obligation to deal with an exclusive bargaining agent, are inap-
posite here.
It is one thing for an employer to make wage or other benefit changes after hon-
estly offering them to the union in collective bargaining , without disparaging the
representative and without at the same time taking steps aimed at its removal. It is
quite something else to dangle the benefits out of the reach of the employees, blame
the bargaining agent for their plight, and suggest, by unmistakable conduct, that the
way to obtain the improvement is to turn against the union.
b. Alleged loss of majority; additional findings of majority status
To offset the compelling conclusions arising from all the foregoing evidence, the
Respondent also sought to evade a finding of illegal conduct , at least as to some of
the refusals to bargain , on the ground that at certain locations the Union was no
longer the majority representative by May or June of 1963, and that the employees
at some stores had already turned against the Union. It now requests a finding that,
with knowledge of the possibility of such disaffection unrelated to its own activities,
the Respondent honestly believed there was a question concerning representation
when it decided as it did. There is an overlapping of arguments in this defense, a
confusion in terms. On one hand the Respondent says that in certain stores the
Union in fact did not represent a majority , and it asserts that the record evidence
proves this sufficiently to rebut the presumption of continuing majority arising from
the contracts and Board certificates . From this assertion-that those locals really
did not represent majorities-it reasons that even assuming the Respondent intended
to violate Section 8(a)(5), there can be no finding that it did so But this same
evidence-supposedly proving lack of majority in the spring and summer of 1963-
is also advanced as support for the Respondent 's major contention that it honestly
doubted majority in such stores
Proof intended to show that the Union simply did not have a majority when the
refusals occurred is of two kinds ; one goes to employee sentiment-by oral testi-
mony and records of dues payments, and the second points to mergers which
occurred before the refusals and which resulted in locals other than the originally
certified or contract ones now claiming representatives status.
The evidence bearing on individual employee sentiment relates to 10 separate
stores. At La Grange (145 employees) employee Barry testified she had been "dis-
satisfied" with the Retail Clerks as far back as January 1963, and never "wanted"
that Union to represent here; in May of 1963 there were 76 dues-paying members at
this store with the record not clear as to whether this was 50 percent. At Carlinville
(4 employees ) employee Ringer said the employees never went to any union meet-
ing "that she knew of," that they "frequently" talked of withdrawing; she also added
she had never told management of her feelings , had been encouraged to move
toward decertification by the benefits speech, and had expressed herself "face-
tiously." At this same store employee Hartley said there had been talk of getting
out of the Retail Clerks and that she had paid her dues "reluctantly." At Southgate
(375 employees) employee Stafford said she had inquired back in 1961 about how to
decertify, or how to stop paying dues, and that she had always deemed the Union
"worthless." At Jefferson City (60 employees) an employee testified she had
resented being forced into the Union by contract since first coming into the store 4
years ago . In Kansas City ( 113 employees ) only 25 employees were paying union
dues in May of 1963. In Ponca City (33 employees) Behrend, the decertification
petitioner , said he filed because he "got nothing for the $3 dues ." In Richmond
(375 employees ) only 73 employees were dues-paying members. In Chico (50
employees ) there were no dues-paying members. In both Richmond and Chico the
Union had been certified in 1962, and no contract had been reached at either loca-
tion; the bylaws of this local, representative in both stores , did not require dues of
employees until a contract had been achieved . In Hillsdale ( 34 employees ) 16 were
dues-paying members. In El Dorado ( 34 employees ) 7 employees were paying dues.
Even detached from other proper considerations on this record, the foregoing does
not suffice to offset the majority status shown by the existing contracts or certifi-
cates, coupled with the Respondent 's continuing recognition of these locals at those
stores. The question at issue is not concerned with membership majority, nor dues
paying majority . What is involved is authority to bargain , or the willingness on the
part of the employees to be represented by a labor organization . This is so funda-
mental a rule as to require no further comment here . Whether or not at given loca-
tion there was a majority paying dues is therefore beside the point.
MONTGOMERY WARD AND CO., INCORPORATED 1251
As to the oral statements of personal feeling or sentiment by individual employees,
months after the events, intended to establish their frame of mind before the conduct
of their employer now said to have coerced them in their attitude toward the Union,
it is a very weak reed to prove retroactively an independent rejection of collective
bargaining then. Four of these witnesses were the very tools, willingly or unwillingly,
of the decertification techniques. In any event, even assuming some of the isolated
instances of employees who were truly long opposed to the Retail Clerks even apart
from anything the Respondent may have done, such few numbers fall far short of
any significant weight here.
The employees in nine stores changed from one Retail Clerks local to another, by
merger activities, after the original Board certificate or after the last contract had
been made. In each instance the resultant local appears in the complaint as the
claiming union. The Respondent asserts that the merger activities within the Retail
Clerks were not valid, and that therefore there is no basis for finding majority status
in the present claiming union. On this argument the facts established on the record
are as follows:
Local 291, certified and contract union at La Grange, merged into Local 300 on
January 1, 1963. The Company was notified of the merger at that time and replied
that "so far as the Company was concerned, Local 300 was the successor to Local
291. Company counsel, at the hearing at La Grange, stipulated that "after the
merger of the two locals at La Grange to Local 300, the Company continued to deal
with Local 300 as though it were the bargaining agent." In the course of the
regional group bargaining during May of 1963, the Company called on the union
negotiators to show their authorization to speak on behalf of the various local stores;
in response Rodriguez, president of Local 300, delivered a letter to Scheidt saying
that Local 300 had authorized the international representative to speak on behalf of
the La Grange employees. The Company accepted it and continued to bargain.
Local 1593, certified and contract union at Marietta, merged into Local 1059 on
January 1, 1963. On January 25, the officers of both the old local and new one, in
writing, advised the Company of the merger, and that the new local would "assume
the duties and obligations of the collective-bargaining contract." Lowe, business
agent of Local 1059, testified that all members of Local 1593 had been notified by
letter, that a notice of the merger meeting has been posted on the bulletin boards at
all stores-including Wards, that about 200 members had voted at the merger meet-
ing, and that Local 1593 originally had 150 members while the resultant Local 1059
has 3,000 members. He also testified that the Company continued to recognize
Local 1059, that he thereafter discussed grievances with management, and that the
Company sent dues checkoffs, pursuant to the contract, to Local 1059. One employee,
Mathews, called by the Respondent, said she had never heard of the merger.
Local 209, certified and contract union at Meadville, merged into Local 1538 in
May of 1962; the Company was advised of the merger in writing at the time. Marak,
vice president of the new local and president of the old, testified that a notice of
merger meeting had been posted in this store, that thereafter there were grievances
processed, and that dues checkoffs had thereafter been sent by the Company to Local
1538. Sterritt, the store manager, testified he "assumed" the dues had been for-
warded to the new local. At the close of the hearing at this location the parties
stipulated that after the merger dues had been sent either to the "Retail Clerks
International Union" or the "Retail Clerks Union." In March 1963 Local 1538
served notice upon the Company of intent to renegotiate the contract. At a Pitts-
burg bargaining session later Local 1538 produced authorization for higher union
officials to negotiate on its behalf; no questions were raised by the Respondent. After
the company election at this location in August the Respondent offered to bargain
with Local 1538, and in December offered a contract directly in the name of that
local.
Local 1512A was certified in Southgate in 1959, at Royal Oak in 1947, and at
Port Huron in 1956. It had contracts for these stores extending into 1963, and in
1960 merged into Local 876. The parties stipulated that thereafter the Respondent
"recognized Local 876 as the bargaining representative for the employer's South-
gate, Royal Oak, and Port Huron Retail Stores." 34 During 1962, because of the
terms of the existing contract, the Respondent bargained with Local 876 on the
question of whether it could operate on Sundays without paying double time.
94 In view of this stipulation and the fact that the Respondent bargained with Local 876
during 1963 and never raised any issue concerning the 1960 merger until the hearing at
Southgate in January 1964, its offer to prove that the merger had been invalid was rejected.
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 782, certified and contract local at Maryville, merged into Local 988 in
April of 1961. The parties stipulated that the Respondent "recognized the Union
after the transfer." Woodbury, business agent of Local 988, testified without con-
tradiction that from 1961 through 1963 dues checkoffs were sent to Local 988 35
Local 454, certified and contract union at Alamosa, merged into Local 7 in April
of 1962. In a letter dated July 2, 1963, to the Board's Regional Office in response
to advice that the decertification petition had been filed here, the Respondent's labor
relations director wrote:
Also enclosed is a copy of the agreement that was in effect between the Com-
pany and the Union. You will note that the contract was executed with Local
454 of the Retail Clerks Union. Approximately in April, 1962, a merger
occurred between Local 454 and Local 7 of the Retail Clerks Union. Since
1962, the Company has dealt with and recognized Local 7 as the successor to,
Local 454 and as the representative of the employees. The recent bargaining
negotiations have been with Local 7. The contract as indicated expired on
June 1, 1963.
Dues checkoffs were thereafter mailed to Local 7.
Local 1659 was certified in 1950 and had a contract expiring on June 1, 1963, at
Petoskey. Sometime before April 22, 1963, Local 11 became the majority repre-
sentative at this store. In a letter dated April 22 the Company's labor relations.
department advised the store manager : "Local 11 of the Retail Clerks' Union has
provided evidence to the Company that they represent a majority of the employees
in the store. Therefore, the Company is recognizing Local 11 as the collective
bargaining agent." A letter from the Company to Local 11 on May 2 also reaffirmed
the contract provisions for continued checkoff of dues to Local 11.
At Hillsdale, the Retail Clerks International was certified in 1956 and by 1963
there was a local union in the picture. The record does not indicate when it was
formed, but a copy of the contract which expired at this location on June 1, 1963,
was produced by the Respondent and shows Local 10 as the recognized bargaining
agent.
In all 38 of the stores covered by the Section 8(a) (5) allegation of the complaint
the original exclusive bargaining agency was established by Board certification. As
of 1963, however, this status rested, in almost all instances, upon both the certifi-
cates and the contracts which had been executed pursuant to the certifications. The-
regularity of the majority status and of the Respondent's recognition of these many
locals, therefore, was also evidenced by the effective force of these collective-
bargaining agreements. In turn, these same contracts constituted proof, in this
case, that the locals involved in each instance in fact continued to represent a major-
ity of the employees in each store unit when they expired on June 1, 1963, and
shortly thereafter. The Board has long held that there arises a presumption of con-
tinued majority from either its certificate or from a regular exclusive recognition,
agreement predicated upon it.36 Fundamentally this principle recognizes the neces-
sity, in the interests of stable and peaceful labor relations, for honoring bargaining,
relationships duly established. To subject all such certificates or contracts to an
affirmative burden of reestablishing in every instance the Union's authority to repre-
sent the employees would place an intolerable burden on continued harmonious
collective-bargaining relations and expose a duly selected majority representative,
long after the commission of unfair labor practices by an employer, to an impossible
prerequisite for redress. It is for this reason that an employer may only question
the Union's continued majority at the end of a contract term if it does so in good
faith and on the basis of reasonable grounds shown.37 The most significant aspect
35 At this location the General Counsel's offer to prove that the 1961 merger had been
valid was rejected
36 Celanese Corporation of America , 95 NLRB 664 ; Shamrock Dairy, Inc ., 124 NLRB
494, enfd. 280 F. 2d 665 (C A D.C.).
37 Carter Machine and Tool Co., 133 NLRB 247:
Two factors are essential prerequisites to any finding that the employer raised the
majority issue in good faith where a union has been certified by the Board. There
must, first of all , have been some reasonable ground for believing that the Union
had lost its majority status since its certification. And secondly , the majority issue
must not have been raised by the employer in a context of illegal antiunion activities,
or other conduct by the employer aimed at causing disaffection from the union or
indicating that in raising the majority issue the employer was merely seeking to gain,
time in which to undermine the Union.
MONTGOMERY WARD AND CO., INCORPORATED 1253
of this question in this case is that the attack upon the presumption of continued
majority flowing from the contracts and certificates was not voiced until many months
after the events, and that it is now raised in the face of positive, very persuasive indi-
cation of an intent to remove the Union from the stores without regard to whatever
its representative strength may have been.
The evidence, set out above, of the Respondent's treatment of the successor locals
in each instance shows clearly that it believed the merger activities to be perfectly
proper and valid at the time, that it recognized the new locals as majority represent-
atives, and that it regularly dealt with them as it had done with the predecessors.
More important, in terms of whether or not the principle of presumed continued
majority status applies here, is the fact that its total proves a virtual agreement that
the new locals had in effect replaced the earlier ones as party to the contracts. In
some instances it was shown that grievances were processed; this must have been
pursuant to the procedures set out in the agreements. But most persuasive is the
fact that after the mergers the Respondent collected dues from the employees and
forwarded them to the successor locals. But it was only if these locals were enti-
tled to contract rights that the checkoffs would have been honored, or, indeed, have
been lawful at all. Written notice to modify the contract, under a specific provision,
was served by Local 1538 at Meadville, and the Respondent found nothing wrong
with it. At the various negotiation conferences in April and May it demanded
proof that centralized bargaining had in fact been authorized for each store. In
each instance such proof was given, in writing, by the offices of the locals involved,
including those which were successor unions. And again, by accepting such authori-
zations and proceeding with the negotiations, the Respondent impliedly admitted
.they held the expiring contracts.
I conclude that neither the oral testimony of several employees, nor the fact that
at certain locations less than one-half the store employees were paying dues in May
of 1963, nor the evidence of certain mergers of locals having occurred while the
contracts were in effect and long before the Respondent embarked upon its planned
program to unseat the Union at a number of stores, suffice to rebut the proof of
majority status by the various locals with which the Respondent was dealing in the
spring and summer of 1963. Accordingly it is found that at each of the following
locations the respective local set opposite the locations, by virtue of Section 9(a)
,of the Act, was in May of 1963 and now is the exclusive bargaining representative of
all the employees in the previously indicated units for purposes of collective bar-
gaining in respect to rates of pay, wages, hours of employment, and other condi-
tions of employment:
Local Local
La Grange ----------------- 300 Richmond--------------------- 1179
Carlinville----------------- 1053 Chico------------------------ 17
Southgate ----------------- 876 Marietta ---------------------- 1059
Royal Oak ---------------- 876 Meadville--------------------- 1538
Port Huron --------------- 876 Maryville --------------------- 988
Jefferson City------------- 782 Alamosa---------------------- 7
Kansas City --------------- 782 Petoskey---------------------- 11
Ponca City---------------- 809 Hillsdale---------------------- 10
El Dorado ---------------- 809
As support for the contention that the refusals to bargain were based on reason-
able grounds and a good-faith doubt of majority status at the time, all the foregoing
evidence is of very little, if any weight at all. Company agents, store managers at
least, did know from their payroll records how many employees were having their
dues checked off They could not know how many others were paying directly.
But no representative of the Company ever voiced concern over this matter, it was
not until the hearing reached the various cities that any mention of the subject was
made. But most revealing of bad faith, particularly with respect to the argument
now based on the old mergers, is the fact that the Respondent even attempted to
come to terms with these very successor locals in some stores after its total scheme
had failed to win open rejection of the locals by the employees in the August elec-
tions. In all the conferences and correspondence preceding the start of the hearing
in October, the only grounds advanced for refusing to bargain were the decertifica-
tion petitions. It is quite clear that had the Union accepted the Company's pro-
posals by early May, before the benefits speech and decertification brochure were
written, the Respondent would have executed new contracts with every local with
which it was then negotiating, including the successor locals now under attack. As
will appear below, after the August elections, Labor Relations Director Scheidt
wrote to Local 1059 at Marietta, Local 988 at Maryville, and Local 7 at Alamosa,
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and invited each of them to resume bargaining, despite his earlier refusals. But
these are three of the very locals which he now claims were never lawfully entitled
to exclusive recognition. He testified that as of the end of the hearing in May
1964, he was discussing contract terms with the local unions at Maryville and Mead-
ville, both locals which resulted from past mergers. Local 876 was established in
1960 at Southgate and Royal Oak and in the 1964 hearing the Respondent wanted to
inquire into the validity of that old merger. But shortly before the hearing started
the Respondent entered into a strike settlement agreement with that same local for
these two stores. And finally, at the very time he was arguing an inherent disability
in Local 1059 as bargaining agent for Marietta, Scheidt said he had resolved all
differences there with a signed contract with that same local38
c. Claimed reasonable grounds for questioning majority
The same mind which conceived, directed, and supervised the principal manage-
ment activities now appearing as the prima facie case against the Respondent, also
made the decision to discontinue bargaining at these many locations. Labor Rela-
tions Director Scheidt was the guiding authority in all these matters. He under-
took, as a witness, to explain, as properly motivated, all that management representa-
tives did in the stores throughout this period. Denying that an intent to avoid col-
lective bargaining was ever in his mind, he stated at great length the basis of his
belief that on the critical dates the local unions no longer represented a majority of
the employees. He contends-and this is the Respondent's heart defense to the
complaint as a whole-that the facts as he knew them are reason enough for find-
ing that his decision in all instances comported with what a reasonable and honest
man would do in the circumstances, despite any suspicions that might arise from
other evidence.
His statement, addressed to 37 separate stores, was a very long one; in substance
he repeated the same factual assertions as applicable to most of them, and the char-
acter of his testimony, or its probative value, is virtually the same throughout. No,
useful purpose would be served by reporting here, in repetitive detail, the consistent
refrain appearing in his long recital. If these stores represented 37 separated cases
and none bore a coherent relationship to the rest, or if there were a meaningful
difference in the asserted grounds for refusal among the various locations, each
statement of reason should, and would be considered independently. Instead, as
the allegation of the complaint is that a repetitive and unbroken pattern proves a
pervasive illegal objective, as the defensive assertions for all the stores are uniform,
and as the total conduct emanated from one mind, it will suffice to consider Scheidt's
long explanation as a single statement of position. This will do justice both to his
basic contention and to the real issue presented.
Scheidt said that in each instance he considered the fact that a decertification peti-
tion had been filed. For seven stores-Marietta, Woodland, Modesto, Meadville,
Chico and San Luis Obispo-he advanced no reason other than this. For seven other
stores-Alamosa, Anchorage, Butler, El Dorado, DuBois, Madera and La Grange-
he said another factor of importance to him was that the Board certification had
been issued long ago; of these the oldest was dated 1956, the most recent, 1961. In
a few instances he gave special reasons in addition.
In La Grange, where the local was certified in 1959: because that union had
failed to win elections before 1959. In Madera: because when the local union was
recertified in 1961 it had been pursuant to a decertification petition. In Portland,
where the complaint was 8 years old: because in 1957 a decertification petition had
been filed and then withdrawn. In Petoskey. because in February 1963, when he
had recognized the Union pursuant to a card check and reaffirmed an existing con-
tract, the Union's majority had been only 26 to 21. In Las Vegas: because the
Union had been certified in 1962 pursuant to a decertification election In Chico:
because the local had failed to win an election before the one which resulted in its
certification in 1962, and because thereafter no contract had been signed In Rich-
mond: because when the employees voted for the Union in 1962 they had not really
desired collective bargaining, but only wished to express criticism of the then store
as Celanese Corporation of America, supra:
. . . the answer to the question whether the Respondent violated Section 8(a) (5)
of the Act . . . depends, not on whether there was sufficient evidence to rebut the
presumption of the Union's continuing majority status or to demonstrate that the
Union in fact did not represent the majority of the employees, but upon whether the
Employer in good faith believed that the Union no longer represented the majority
of the employees.
MONTGOMERY WARD AND CO., INCORPORATED 1255
manager, who had made one of the sales girls pregnant. For Richmond, Scheidt
gave an additional special reason: "And the fact that no agreement had been .
reached and the fact that the Union had done nothing about it in the way of eco-
nomic activity, led me to believe that they were not probably strong enough to take
any action against the Company."
Apart from the foregoing, Scheidt said he relied upon written answers to ques-
tionnaires he had distributed to the managers of unionized stores in January 1962
and January 1963. The interrogatories asked the managers to report their knowl-
edge of employee union activities and their own opinion, in conclusion, of the local
Union's strength. Typical questions: how many employees were union members;
how many were having dues deducted; how many grievances had been processed;
how many union meetings had been held and how well had they been attended dur-
ing the prior years; what was the manager's opinion as to the employees' "extent of
interest in the Union," and as to how they would vote in an election, both with and
without "reasonable campaigning by the Company." Scheidt himself knew nothing
of the truth or falsity of any "facts" thus reported to him by the store managers,
and the opinion certainly were somebody else's . He said these questionnaires, in
part, formed the basis for his doubt of majority status with respect to about 17
stores, and he showed the documents themselves into evidence. He also said like
questionnaires had been distributed to the other stores here involved and where he
also refused to bargain , but did not explain why the remainder-he said a "vast
majority" had been returned-were not used by him in his calculations.
The remaining grounds advanced by Scheidt compared exactly to these written
reports, except that they consisted of oral instead of written reports made to him by
store managers and others. He related a number of conversations in which the
managers told him they doubted majority in certain stores in 1963 and, in some
instances , also told him their reasons for such conclusions. This part of Scheidt's
testimony-and here again he gave such justification with respect to about 16 stores-
was phrased largely in generalities , conclusions , and sheer expressions of opinion
by others. Speaking of all these conversations , the witness admitted he had no
knowledge himself of the truth of anything that came to him thus over the telephone.
All of this indirect testimony and hearsay reporting must be considered in the
same light, in the ultimate evaluation of Scheidt's testimony , against the objective
facts proved on the record . There would be no purpose, therefore, in repeating all
of it here. The following excerpts are illustrative of the tenor and character of his
story.
Dowland, acting manager at Carlinville, told him that all the employees had
signed a decertification petition sheet and she could not see why there should be any
Board election . In listing his reasons at El Dorado, Scheidt added: "I had informa-
tion beyond that, conversations or correspondence or something else." For Long-
view: "I secured the opinion of the store manager with whom I had the conversa-
tion, Mr. Stonberg, and he expressed, during that conversation, his opinion as to
number of people that supported the Retail Clerks' union." Lloyd, company labor
relations lawyer in California, told him "there were 15 people that he believed would
not support either union, that they were antiunion employees." Muskegon: "I
asked him [the store manager] how many members the Union had in his opinion.
And he said that he believed there were 38 members of the Union at that time."
Petoskey: . he [the store manager] stated that as far as he was concerned, the
employees did not want or the majority of them, at least, did not want to be repre-
sented by the Union ...... Scheidt said he asked the assistant manager at Richmond
"as to the relative status of the Union," and that the man said "it was the consensus
of opinion that the Union represented at best 35 to 40 percent of the employees."
The store manager at DuBois had written in a letter on September 7 that 18 employ-
ees had signed in support of decertification. Scheidt said he telephoned to ask the
manager how he knew this, and that the manager "told me he had been told that
number by an employee . . . and that I could act upon it." On the telephone the
store manager of Portland "estimated that the union's strength at best had to be
about 30 to 35 percent support of the store." Lloyd, the company lawyer in Cali-
fornia, told Scheidt by telephone that the decertifying petitioner at Chicago had told
Lloyd that more than half the employees there had signed in support of the two peti-
tions filed. From Mt. Vernon: "He [the store manager] told me at that time that
he believed that 25 of the employees would not support the union, and he mentioned,
I believe, his figures were, there were 15 stalwart antiunion people in the store, and
from his acquaintance, he felt that there would be another 8 or 10 that would not
support the Union in view of the union-security provision which was a full union
shop."
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the record in its entirety I find that the Respondent's refusal to
bargain in all the stores involved was motivated by a central antiunion design, as
alleged in the complaint, and was not grounded upon an honest and reasonable doubt
of majority status. Scheidt admitted that as to some stores the sole basis of his con-
clusion that the local no longer represented a majority was the pending decertification
petition. The question as to these therefor is simply whether his activities reflected
above suffice to prove that this is not the case of an employer doing nothing more
than react to a Board proceeding. And the conclusion is fully warranted that the
Company largely was responsible for the petitions; any doubt of its pervasive plan and
intent is entirely dispelled by the August elections. Had Scheidt been concerned
solely, as he now claims, with the question of majority status, he would simply have
had asked the employees this when he did poll them. Instead he made them choose
between union and benefits. But this is precisely what is meant by raising a question
of majority in bad faith.
Particularized reasons, which Scheidt said applied to specific stores, are on their
face most unpersuasive. Facts such as the abortive filing of a decertification petition
in 1957, the type of petition which resulted in union majority in regular Board con-
ducted secret elections, the asserted cloud upon the clear results of a proper election
cast by a manager's personal misconduct with a sales girl, the failure of a local union
to prevail upon the Board to amend an outstanding certificate-all before the
Respondent itself extended exclusive recognition upon a card check 39-all these are
facts which must be weighed against Scheidt's preparation of the decertification
brochure before sending his men into each of the stores to tease the employees with
the benefits which nonunion employees could quickly enjoy, and against the benefits
speeches themselves, which blamed the Union for depriving the employees of quick
benefits. The isolated expressions of old antiunion sentiment, voiced by occasional
employees long after the coercive elections of August, must be considered together
with the extensive evidence of widespread conduct of store managers in inviting them
to resign from the Union, in assisting them in the mechanics of decertification activi-
ties, in openly deploring the very existence of the Union in many stores.
In his letter to the International Union, on July 17, when Scheidt announced his
refusal to bargain for 24 stores, the only basis he stated was the fact that decertifica-
tion petitions had been filed. All the later reasons-too few employees paying dues,
old mergers of locals, employees in distant locations telling managers long ago they
always disliked the Retail Clerks-appear as an afterthought; none was ever men-
tioned until the effective removal of the Union had been completed
When, at the hearing, Scheidt advanced as additional grounds, the opinions of store
managers that they believed the unions to be weak, he added nothing of substance to
the sole reason advanced long ago. Most of these conversations he said he had with
local management took place at about the time he made his decision, and, when
the managers explained the basis for their own conclusions, in most instances they
reverted to the details of the decertification movements. This testimony therefore
was a virtual restatement of the reason set out in Scheidt's original letter, that the
refusals were based on the petitions.
The questionnaire reports from the store managers, dated February 1962 and
February 1963, do pertain to events preceding the employer activities here in review,
and the consequent decertification movements. On their face they purport to reflect
what employees did and said during the years 1961 and 1962. But what employees
in fact did and said during those periods, how they "felt" and what their leanings in
union matters were , has in no sense been shown on this record. From Scheidt all
of this was pure hearsay, and as the record stands there is no probative evidence at
all of any "facts" of this kind that the Respondent could now point to in support of the
defense that it acted reasonably.40
To circumvent the failure to prove that anything at all had happened except the
activities leading to the decertification petitions, the Respondent argues that it does
not matter whether the manager's reports were true or false, and that the only fact
to be considered here is that Scheidt had received these documents and acted upon
them. Where the good faith of a highly experienced labor relations expert like
Scheidt is put in issue, this is too superficial an argument to carry significant weight.
If there were any solid basis for these reports, if the Respondent had truly been con-
cerned with such alleged activities, or inactivities, of its employees in earlier years,
89 A special reason advanced for refusing to bargain at Petoskev
40 "What we have is: witness A testifies he overheard B state that C said such and
such. Obviously A can prove what B said. But the decisive thing is what C is supposed
to have said. And A cannot prove what C said by stating what B said C said." General
Tire of Miami Beach, Inc., et al. v. N .L.R.B., 332 F. 2d 58 (C.A. 5).
MONTGOMERY WARD AND CO., INCORPORATED 1257
the place and the time to establish the real facts was while evidence was being
received at these various locations. In most instances these same managers were on
the stand, and Scheidt or his assistants questioned them. There the General Counsel
would have had an opportunity fairly to inquire whether there was reason for the
managers to report as they did to Scheidt. As the record stands, instead, the Respond-
ent is in effect asking that Scheidt's antiunion activities be weighed against assertions
of fact which were never proved, and against testimony of witnesses who were never
called.
Fairly viewed, what the written reports plus the oral conversations with the store
managers add up to is that the managers believed there was a question concerning
representation and Scheidt, relying on their opinion, acted upon it. After all, the
most significant statements appearing on the reports are the opinion of union strength
in any possible election, or the "extent of interest in the union." But a respondent
cannot escape the compelling inference of illegal purpose arising from his own con-
duct, merely by asserting that the right hand acted on advice of the left. And particu-
larly must this be so when the principal company official, tainted with the imprint of
improper conduct, and who articulated the refusal to bargain, assigns the responsibility
to a lower supervisor who was never given authority to act in the matter When
Scheidt says he questioned majority because a store manager doubted majority, he is
really saying it was the manager who made the decision, and not he But if the
managers decided the thing, it is they who should have been called to exculpate the
Respondent, and not Scheidt.
In sum, the illegal conduct started with the May benefits speeches in all the stores,
while the contracts were still in effect and while the appearances of good-faith bar-
gaining were being maintained. I find that starting at that time, and continuing there-
after in all the stores listed in the complaint except Baker, the Respondent unlawfully
refused to bargain with the majority representatives and committed unfair labor prac-
tices in violation of Section 8(a)(5) of the Act. I also find that by polling the
employees at the Baker store in August, after an agent of the Company had given the
same prepared speech used at all the other company elections, the Respondent vio-
lated Section 8(a) (1) of the Act.
The literal withdrawal of recognition occurred later, but these were only continua-
tions of the basic disregard of the statutory duty to bargain which started in May
everywhere. The first broadside refusals came on July 17, in Scheidt's letter to
Plopper, and it removed 22 stores from the negotiations.
The pattern was consistent throughout. It was started in Ponca City, where a
Board election was held on June 6. In addition to the usual benefits speech given here
2 weeks earlier, an official was sent to deliver a specially prepared speech to the
employees the day before the election. He spent much time telling them that the new
benefits had already been given in nonunion stores and would have to await bargaining
in Ponca City if the Union won tomorrow. In substance this speech foreshadowed
the one given later in 26 stores before the company elections in August. The next
day the Company unilaterally instituted the benefits, and carried out the promise
which the decertification petitioner, repeatedly urged by the store managers, had been
conveying personally to individual employees before the balloting. The illegal
refusal to bargain that day is clear 41 There was a repeat performance in Las Vegas,
when the Board conducted an election on June 21; again an official went to the store
with a prepared speech, given on June 20, and effectively delivered the message that
quick new benefits awaited rejection of the Union. And again the Union lost and the
promise was carried out. The refusal to bargain here was clear that day.
Company election were held at San Luis Obispo. Longview and Richmond. The
refusals to bargain further had been articulated earlier for San Luis Obispo and Long-
view; in Richmond the outstanding Board certification expired on July 31, and, in
a formal sense, the literal refusal to bargain came on November 20. But rejection of
the Union at all three of these locations was clear when the election took place. In
Longview and Richmond the Union lost, the benefits were quickly given, and there has
been no bargaining since. In San Luis Obispo there was no bargaining for a long
time.
In four stores petitions were not filed until after the national settlement was made
on August 7, in Chicago. It was there agreed that as soon as any store group voted
to ratify, the substantive terms of the new contract would be put in effect, with actual
execution of the agreement left as a minor matter. In DuBois, Punxsutawney, Mt.
"Four months earlier the Ponca City store manager had reported to Chicago on the
questionnaire concerning the extent of union activities by the employees. He had closed
his report with- "I firmly believe we could remove the union in this store if we get
started now and if I could know exactly what I can and cannot do."
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vernon, and Chico, the employees quickly voted to ratify, and the new terms-includ-
ing the all important new benefits program-were put in effect. Before the document
could be delivered and signed, decertification petitions were filed and in each instance
the Respondent refused to sign as agreed. The union-security provision of the new
agreement was held in abeyance until the actual signing, but about August 30, with
knowledge of the ratification votes and with the new economic terms being installed, a
company notice from Chicago was posted in the stores at DuBois and Mt. Vernon,
informing the employees of the innovation that once the contract was signed, but not
before, all employees would be required to join the Union. The earlier contracts con-
tained only a limited union-security provision.
Again the pattern of the Respondent's program is clear, even after the settlement
with the International Union. The pattern throughout the many stores shows that
Scheidt's basic purpose was to rid himself of the obligation to deal with the Retail
Clerks wherever possible, to act independently in putting the new benefits program in
effect, and to avoid giving any credit for them to the Union. The decertification
petitions in these four stores were an integral part of the overall activities of the
Company. Give or take a few details, the oral evidence of the petitions and signature
activities here fits into the total picture. Against this background, the testimony of
Winski, a company lawyer who went to Punxsutawney after the petition was filed,
and of the store manager, that they "knew" the local union had lost majority status
then, carries little weight Winski said he "formed an opinion" from his interviews
with the employees, all, of course, after the full impact upon them of the company
activities set out above 42 Manager Anderson was asked why did he doubt majority
after the petition had been filed: "It is very simple, sir, I am the store manager and it
is my job to know what goes on in the store . . . the basis of my information was
common sense ...." "It would be nothing more than a registered guess or registered
suggestion on my part." He added he could distinguish between union adherents and
others because "I can tell a Democrat from a Republican most of the time."
At Pueblo the decertification activities followed within minutes of the benefits
speech. This location is included among the many listed in the Company's letter of
July 17 telling the Union that because of the pending decertification petitions it would
no longer bargain. The contract in effect, however, had until February 1964 to run,
and after it expired the Company again very definitely refused to negotiate. At the
hearing Scheidt said this location was included in his July 17 letter by "mistake."
It was a significant mistake, for it indicates almost conclusively that all Scheidt had
in mind, when he withdrew all these locations from the bargaining table, was the fact
that a decertification petition had been filed in each store. If, as he said at the end
of the hearing when he produced a number of documents as justifying his many deci-
sions, he had in fact examined his files in July 1963, it is not likely he would have
fallen into this "mistake."
In Sacramento the contract expired on November 1, 1963. The benefits speaker in
May had told the girl who wanted to know how "to be out from under the union"
to see the manager for information. The decertification brochure explained how
petitions must be filed towards the close of the contract year, and in this instance it
was filed on August 5. On November 20 the Company refused to bargain further.
This refusal, too, fits into the pattern.
Lastly, in Salisbury the employees petitioned the local union to know why they
were being "denied" the new benefits, and in August filed a petition. The current
contract here expired in January 1964 and a second petition was filed in October.
The Respondent then refused to bargain here also.
Each of the 34 specific refusals to bargain set out above was a violation of Section
8(a) (5) of the Act by the Respondent. The many invitations by store managers to
individual employees to discontinue their union dues or to resign from their local
union, too numerous to restate here, constituted independent violations of Section
8(a)(1) for which the Respondent is responsible. In the context of the record as a
whole, wherever a store manager or other company official assisted employees to pre-
pare antiunion signature sheets or formal decertification petitions for filing, they also
42 From Winski's testimony:
As I said, I was told by more than a majority of employees at this point that as
far as they personally were concerned, their dissatisfaction stemmed far back, as
a matter of fact, and that the employees that were there, this was said by them,
that when the union was certified, had been dissatisfied from that time.
Other employees, of course, their dissatisfaction stemmed from the time that
they came into the unit. It was the general reaction that over that period of time
they could see nothing that the union had done constructive for them and the feeling
was that they were paying dues and getting no benefits.
MONTGOMERY WARD AND CO., INCORPORATED 1259
committed independent unfair labor practices in violation of Section 8(a)(1). And
each of the 26 elections conducted by the Company in August was coercive upon the
employees in violation of Section 8(a)(1); in addition, in all those elections except
Baker, the holding of the election constituted a direct violation of Section 8(a)(5).
Coercion of Witnesses and Interference with Board Process
From the start of the hearing and continuing at many locations thereafter, the
Respondent committed further unfair labor practices. While preparing for the
successive sessions from city to city, the lawyers who tried the case-Scheidt, Brown,
Hanley, Winski, and Michas-questioned a great many employees In these inter-
views, over and above whatever may be the limit of proper and permissable question-
ing of employees in the circumstances concerning their knowledge of or participation
in union activities, they illegally interfered with employees' statutory rights under
Section 7 of the Act, "which includes protection in seeking vindication of those rights
free from interference, restraint and coercion by their employer." 43 In addition to
asking employees what they knew of alleged illegal activities charged against com-
pany representatives, the lawyers also asked for employee affidavits that had been
given to Board agents, indirectly but quite clearly sought to learn in advance of the
trial what the testimony of the witnesses was going to be, and threatened them with
,disciplinary action if they refused to cooperate with the lawyers in these respects. In
a number of instances employees were laid off a few days for refusing to answer
these interrogations, with direct notice that if they persisted they would be perma-
nently separated. Each such employee, after the threat or after suffering a discipli-
nary layoff, yielded to the lawyers' pressure.
The basic refusal-to-bargain allegations of the complaint are fully supported by
the evidence of activities long preceding the hearing, but these were the same per-
sons-especially Hanley and Scheidt-who engaged in the activities which revealed
rejection of the very principle of collective bargaining in the Respondent's relationship
with the Union. Their further misconduct later, which interfered with "the Board's
process in carrying out the statutory mandate to protect such [Section 7] rights," there-
fore appears as still further evidence of a fundamental refusal, by this Respondent, to
comply with the proscriptions enumerated in a now long-established congressional
statute. And the consistent pattern of pretrial interference and coercion of employ-
ees, probably explains in part, at least, the clear hostility of a great number of
employee witnesses called by the General Counsel and their rejection of unequivocal
affidavits previously signed.
The following testimony is all credited and was given in each instance by the
employee involved. Except where indicated by footnote reference, it all stands uncon-
tradicted. And as will appear below, where Hanley and Winski did comment on this
activity at the close of the hearing, they offered only a play on words, and not real
contradiction.
On October 1, a week before the hearing at La Grange, the first store location
where testimony was received, Hanley asked employee Walthers had she given an
affidavit to the Board and "if he could see it." She showed it but refused to part
with it, and Hanley then asked "if he could make a copy of it." She permitted him
to do so. Hanley then discussed the contents of her affidavit with her 44
Before the hearing concluded at La Grange the General Counsel moved and was
permitted to amend the complaint to add allegtaions of independent violations of
Section 8(a)(1) of the Act based on this testimony. At the Respondent's request
the hearing was continued to permit the Respondent to consider this development.
Starting with Marietta, the third of 29 store locations where testimony was taken, in
advance of the hearing the Respondent distributed a form questionnaire to every
employee in each of the many stores and asked each one to fill it out and sign.
Among the 14 questions asked, 3, on the last page, are as follows:
9. Have you given a written statement or have you been interviewed by a
representative of the National Labor Relations Board9
10. If the answer to question 9 is "yes," did you sign a statement9
11. If the answer to question 10 is "yes," do you have a copy of that statement?
The day before the hearing in Marietta, Hanley asked employees Malone, Myers,
and Miller whether he could see their affidavits to the Board; all three refused. Here,
48 Johnnie'a Poultry Co., 146 NLRB 770.
44 At the close of the hearing in Chicago, 7 months later, Hanley testified that he did
ask Walthers, in an office, did she give an affidavit and did she have a copy, and that
when Walthers said yes, be asked "if she had any objection to my looking at a copy of
her affidavit."
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also, Brown, a company lawyer, asked Matthews whether she had given an affidavit,
and could he see it. A few days before the hearing in Butler, Scheidt discussed
employee Pugh's answers to her questionnaire, asked did she have a copy of her
affidavit to the Board, and said: "He would like to see it, but that it would be entirely
up to me if I gave it to him." She refused. He asked the same thing of employee
Gallagher: "as to whether he could see my statement or not?"
At Meadville Union Steward Marak refused to answer the critical questions 9, 10
and 11 on the questionnaire. He was later interviewed by Hanley, who asked had he
attended union meetings, and why did he refuse to answer those questions. Marak
said it was an interference with his "privacy." Hanley also interviewed employee
Kaiser, asking had he spoken to a Board agent, had he given an affidavit, did he have
a copy, had he signed a decertification petition. Kaiser refused to answer. Employee
Miklovic answered only the first few questions on the questionnaire, and claimed he
could not recall with respect to the rest. Hanley told him to put that in writing, but
Miklovic refused. On orders from Scheidt all three of these men were laid off for a
few days for such refusals, and advised the layoffs would be permanent if they
persisted. They then had a change of heart, answered, and were returned to work.
Still at Meadville, Winski, the other company lawyer, asked employee Mazick did
he belong to the Union, for how long, had he gone to meetings, had he signed the
petition circulated by Canney, the tire department supervisor.
At Punxsutawney, Rorabaugh refused to answer any questions on the questionnaire;
he said he wished to stay "neutral." Rorabaugh repeated the same position of
neutrality when Lawyer Winski interviewed him after the refusal; he still persisted in
answering nothing. The manager laid Rorabaugh off for 2 days in consequence of
his refusal and the employee then changed his mind and answered whatever he was
asked. Winski also spoke to employee Nichol here, because she had refused to answer
some of the questions; Winski spoke to her of disciplinary action in consequence.45
The Respondent called Stafford and Smith, the principal actors towards decertifica-
tion, as witnesses at Southgate. While questioning them, Respondent's counsel had in
his hands photostat copies of their affidavits to the Board. Each witness had asked for
copies from the Board's Regional Office sometime after signing them. Stafford testi-
fied she had never parted with hers. Smith said Murdock, the store personnel
manager, asked her for both affidavits and that she gave them to Murdock, who had
photostat copies made. Smith also said that on an earlier occasion she had herself
showed the affidavits to the personnel manager.
In Muskegon, Hanley asked employee Murphy if he had given an affidavit and did
he have a copy; Murphy said he did not have a copy. Hanley also asked Bellamy
had she signed and could he see her copy. She refused to show it to him.46
At Hillsdale, Gossman, a union steward, refused to answer any part of the question-
naire, and Hanley told him a layoff would be recommended if he continued to refuse.
He gave Gossman time to reconsider, and the man changed his mind. Hanley also
asked Smith, another steward, had she signed, did she have a copy, and would she
"object to him seeing a copy of the statement." Smith refused and said she thought
it to be "confidential." Employee Sheely answered only some of the written ques-
tions; he was warned by both Hanley and the store manager. Still refusing, he was
laid off for 2 days. Sheely then thought it over and answered all questions.
Company Lawyer Michas went to Kansas City. He asked employee Halula if she
had given an affidavit, did she have it, "I would like to see it." She refused to show it.
Michas also asked employee Griffith at Maryville had she signed a statement, and "he
asked me if I cared for him to see it." She said she did not care for anyone to see it.
45 Long after the hearing at Punxsutawney, Winski recalled Rorabaugh had refused
to answer questions ; he said he asked whether the written benefits speech script received
in evidence were really what had been said by the benefits speaker . He said he asked
nothing more than the preliminary questions, but then admitted he asked questions other
than what appeared in the printed questionnaire , whether the new company benefits has
been discussed at the union meetings, and whether the employees were paying union
dues. He also said Nichol had refused to say whether the manager had participated in
circulating a petition.
"'Hanley testified he only asked Bellamy did she have a copy of her affidavit ; he denied
asking her for it. Bellamy's testimony is consistent with the pattern of activities by
these lawyers ; this, plus so much other undenied testimony of Hanley asking for these
affidavits elsewhere , makes his denial here unpersuasive.
MONTGOMERY WARD AND CO., INCORPORATED 1261
When the Board's field examiner arrived at Maryville to investigate this case, the
store manager read a prepared statement to each employee as he ushered them into a
room for interview and presented each to the field examiner personally. Included in
the prepared statement was the following:
I wish to make it clear that you do not have to talk with Mr. Lucero or sign any
statements. The law does not require this, nor does the company .... If you
do sign a statement, however, make sure that it states exactly what you intend
and if it does not, insist that it read exactly as you intend it to .... Likewise, if
you do sign a statement, and again you are encouraged to do this, ask Mr. Lucero
in advance for an exact copy of your statement. You should have a copy of
anything you sign in writing and if it becomes necessary foi the company to
further investigate this matter, your signed statement will be an accurate record
of your knowledge of this situation.
As each employee emerged from the interview, the store manager asked if he had
remembered to obtain a copy of his statement.
The manager of the El Dorado store read this same statement to every employee
before he was interviewed by the Board investigators. At this store, also, Michas, the
lawyer, asked employee Titus did she have a copy of her affidavit, and would she
"bring it in to him." Michas also asked employee Barker did she have a copy of her
affidavit, and "he told me if I found a copy to bring it up ... so he could read it."
At La Junta, Lawyer Brown told employee Angleton she could be fired if she
refused to answer certain questions. Angleton persisted, was laid off 11/2 days in
consequence, and then answered and was permitted to remain. In this instance, the
testimony of the witness in its totality makes it rather clear that Brown limited his
inquiry to Angleton's knowledge concerning the decertification activities and who had
really carried them on, or stimulated them. Angleton seemed to admit the lawyer's
insistence did not relate to matters concerning Board affidavits as such.
At Las Vegas the store manager called a meeting of all employees the day he
learned a Board field examiner had arrived in town. He spoke from a prepared state-
ment read to him over the telephone from Chicago, but said he had mislaid the docu-
ment. Among the things he said was that some employees had been invited to a motel
to be interviewed and that "whether they wanted to, they could and if they did not
want to, they didn't have to ......
Every instance set out above in which a company agent requested an employee to
show his Board affidavit constituted a direct violation of Section 8(a)(1) of the Act
and it is so found.47 And it matters not that in one case the lawyer asked for the
affidavit outright and in another asked the employee did "he wish" the lawyer to see it,
or would "he object" to showing it, or did "he care" to do so. The message was clear
in every interview, and the coercive effect upon the employee, of which the Board
spoke in the Grant case, is not lessened by indirect phrasing of the same thought.
A greater number of employees were personally asked whether they had signed
Board affidavits, and this is one of the specific inquiries included in the questionnaire
which all employees were asked to answer and sign. In some situations reported
above, it is clear that the thieats of discharge and the disciplinary layoffs resulted
from refusals to answer this question among others. In some instances, as in the
case of Attorney Brown's questioning of Angleton at Las Vegas, it may be that the
economic retaliation for refusing to "cooperate," as the Respondent puts it, was to
enforce "loyalty" in investigations unrelated to whatever employees might have told
Board agents, or even to testimony which they might later give. The Board has held
that in preparing to defend against unfair labor practice charges an employer may
inquire whether a person did give a written statement. Of course, the lawyers did
more than that; they also asked did the employee have a copy. If the rationale for
permitting the question-did you sign a statement?-is so that the Respondent will
know whether to ask for it during a hearing for purpose of cross-examination, the
excuse cannot apply to the next question-do you have a copy' A copy will surely
be available at the hearing, for that is why the field examiner took it in the first place.
What can be the reason for asking the employee does he have a copy, in this area,
and therefore what must necessarily be the effect of such inter rogation upon the
employee. This whole field of "permissable inquiry ... concerning statements or
affidavits given to a Board agent" always involves "the risk of intimidation which
+7 W. T. Grant Company, 144 NLRB 1179 ; Henry I. Siegel Co. v. N.L.R.B., 328 F. 2d 25
(C.A. 2).
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interrogation as to union matters necessarily entails." 48 The right of an employer
fairly to inquire must be weighed against the inevitable encroachment upon the free-
dom of employees to look to the Board for protection. Given that the first inquiry-
did you give a statement?-is proper, and the last-will you let me see it?-is,
illegal, I think the middle question-do you have a copy?-ought not be permitted,
for whatever reason is deemed sufficient to prohibit the last. Do you have a cigarette9
Do you have a dollar? Do you have a copy?
But there is a more important question calling for decision here. Does it follow
from the fact an employer may inquire about activities relating to an unfair labor
practice case, that it may also compel answers, and discharge employees who choose
to remain silent? Here there were only threats of discharge, and short layoffs, but
the issue is the same, for it was only because the employees weakened in the face of
the threats, and spoke against their will, that they avoided final separation.
In the light of the nature of the right guaranteed employees by Section 7 of the
Act, the answer to this question must be in the negative. It is a matter of employers,
inquiring preparatory to defense against unfair labor charges, and therefore, however
phrased, the questions must relate to union activities, one way or the other, whether
by employees or by company representatives. The ultimate purpose of the employer's
pretrial investigation can only be aimed at ascertaining what the eventual testimony
will be at the hearing, which employee might tell stories in its favor and which
against. The facts at issue may not directly deal with union matters, but, however
indirectly, they must have a bearing on the final complaint allegation in matters
relating to union affairs. Employees have a guaranteed right, in their union activities,
to be free of employer interference, and this right is recognized by Section 8(a) (4) to
extend to unrestrained freedom in giving testimony before the Board. This freedom
cuts both ways. They are free to talk to their employer if they choose; and some
employees in this very case voluntarily brought their affidavits to the Company. But
they must be free also to refuse to speak. The purported analogy to a "slip and fall
case," where it is argued any employee owes a loyalty to his employer to come forth
with what he knows of a personal injury negligence claim, is inapposite. Anything
that is not concerned with unions, or concerted activities related to employment con-
ditions, has nothing to do with and therefore cannot be logical analogy to this question.
I find that each interrogation of employees set out above as to whether the employ-
ees had a copy of his affidavit given to a Board agent, and each request to show the
affidavit to a company representative, constituted a violation of Section 8 (a)( I) of
the Act. I find that each instance of threat to discipline or discharge an employee for
refusing to answer any of the above questions, or any other question concerning the
employee's interview with a Board agent, or the employee's knowledge concerning
the allegations of unfair labor practice charges against the Respondent, was an act of
restraint and coercion violative of Section 8(a)(1). I also find that the layoff of
employees Marak, Kaiser, Miklovic, Rorabaugh, Sheely and Angleton for refusing to
answer questions as detailed above constituted unlawful discrimination in employ-
ment in violation of Section 8 (a) (4) of the Act.49
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in con-
nection with its operations set forth in section I, above, have a close, intimate, and
substantial relation 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 the Respondent committed certain unfair labor practices, I shall
recommend that it be ordered to cease and desist from engaging in further such con-
duct and to take affirmative remedial action designed to dissipate its effects and to
restore the status quo ante. It must above all be ordered to cease and desist from
any further conduct violative of Section 8(a) (5) of the Act. This will include any
form of encouragement, assistance, or instigation of employees to discontinue union
membership or payment of union dues, or to file decertification petitions with the
Board. The order will also enjoin the Respondent from any further unlawful refusals
to bargain with any majority representative of its employees or from engaging in
any conduct constituting a refusal to bargain as defined in Section 8(d) of the Act.
48 Joy Silk Mills, Inc. v. N.L R B., 185 F. 2d 732, 743.
40 Lloyd A. Fry Roofing Company, 123 NLRB 647.
MONTGOMERY WARD AND CO., INCORPORATED 1263
The Respondent must also be ordered expressly to cease and desist from illegal
interrogation or polling of its employees in a manner violative of Section 8(a)(1) of
the Act, or from promising improved conditions of employment as an inducement for
employees to reject their union.
The Respondent's widespread illegal inquiry of many employees concerning their
interviews by Board investigating agents and concerning statements or affidavits they
may have given such agents, also makes necessary a specific order to discontinue
such practices in the future. The disciplinary layoff of employees for refusing to
reveal whether they have given statements to Board agents, for refusing to discuss
their proposed testimony with company representatives, or for refusing to answer
questions put by management representatives concerning the substance of the charge
against the Respondent, also requires the usual make-whole remedy.
The Respondent will also be required to take affirmative remedial action. Of the
total of 34 separate store locations where the Respondent directly withdrew recogni-
tion from the Union and refused outright to continue bargaining, the General Counsel
asks that it be ordered to bargain with appropriate local union on request in all but a
very limited number of them. This is the long-established minimum remedial action
required by the Board and the extent and character of conduct leading to and under-
lying the Respondent's denial of statutory recognition rights to the Union in this
case fully warrants adherence to that practice here. The finality of the Respondent's
illegal exclusion of the Union as a bargaining agent in 24 of the stores involved is
clear and unquestioned on the record. Of these, 2 had lost Board elections in June
(Ponca City and Las Vegas); 14 had lost in the company elections in August
(Anchorage, Carlinville, El Dorado, Jefferson City, Kansas City, Hillsdale, La
Grange, Longview, Merced, Petoskey, Richmond, Madera, Portland, and Spokane); 50
in one (Butler) the company election was inconclusive; the remaining 7 were denied
further recognition thereafter (Mt. Vernon, Salisbury, Chico, Sacramento, Pueblo,
Punxsutawney and DuBois). With the exception of Butler, in all these 24 stores the
Respondent, after the refusal, gave the employees either its three giant steps new
benefits, if the refusals occurred before August 8, or all the economic terms of the
national agreement reached with the Union, if the refusal came later.
As to the remaining eight locations where an affirmative order to bargain is
requested, the unequivocal refusals to bargain are no less clear, and the obligation of
the Respondent to bargain now, on request, if the coercive effects of its unfair labor
practices are to be dissipated, is equally indicated. As to these stores, however, the
Respondent offered, and was permitted to show, certain events which occurred after
the full pattern of its illegal program to exclude the Union from the stores had been
perfected and carried out. Briefly, the Respondent showed that in San Luis Obispo,
where the company election produced inconclusive results, the Company did not put
the new benefits in effect. Somehow, there came a time in February 1964 when it
discussed the possibility of signing a contract with the Local. No agreement was
reached and that is how matters stood at the time of the hearing.
In the last seven stores, in each of which there was an unequivocal refusal to
negotiate further and in each of which the Respondent held its coercive and illegal
August election, the employees voted in favor of the local union. After these elec-
tions, the Respondent wrote a letter to the local, offered to extend recognition anew on
the basis of the election conducted by the Company, invited it to resume bargaining,
and suggested signing the settlement agreement negotiated nationally in Chicago. On
advice of its International office, each such local replied that while it reasserted its
claimed majority status, it refused the invitation as an attempt by the Respondent to
enjoy "the fruits of illegal conduct." The Union contended that the elections were
"in derogation of lawful Board process," and that the Union refused to be the
"recipient of such company tactics which were aimed at the Union's destruction." The
Respondent then filed charges with the General Counsel, alleging that these local
unions had illegally refused to bargain in violation of Section 8(b)(3) of the Act;
the General Counsel refused to issue complaint.
With time, there were further developments at these stores. At six of them the
local changed position and entered upon discussion aimed at the possibility of signing
the August national settlement. In San Jose and in Marietta the contracts were
eventually signed in early 1964. In Alamosa, as the parties were on the verge of
signing, another decertification petition was filed, and again the Respondent refused to
make a contract. In Meadville, Muskegon and Maryville, talk was inconclusive and
no agreement was ever made. At Port Huron the retail store was closed in December
of 1963, and the old catalogue department continued as a separate catalogue store,
with only eight employees, the same persons who had worked there before.
51 The 15th store where the Union lost is Baker , where a violation of Section 8(a)(1)
of the Act is found.
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All these facts relating to events occurring after the commission of the unfair labor
practices were proved over continuing objection by the General Counsel. In the
arguments, on the record, between competing counsel on the question of admissibility,
the various lawyers for the Respondent made many passing, but vague and elusive
statements as to what they sought to achieve in this case by this evidence. At times
they seemed to argue that the Company's later willingness to bargain proves its good
faith from the start, or that the broad theory of circumstantial evidence requires a
look at the "total picture," even including these subsequent matters, or that these facts
show that it was only a doubt of majority that ever motivated the Respondent. Again
at other times the theory here seemed to be addressed to the remedy; it sounded like
an argument that once an employer expresses a willingness to resume bargaining, any
and all of its previous conduct becomes meaningless, or that if, after all has been said
and done, the union sits down and talks, it ipso facto waives any right to redress for
hurts that may have been inflicted upon it. The lawyers also seemed to say that once
the union itself has refused to deal with the employer, regardless of the circumstances,
the employer's good faith can in no event be questioned. Referring to the two stores
where, finally, the local union accepted the contract and signed, counsel also said that
as this-the agreement-was all that these two locals would have received even if
there had never been any refusals to bargain at all, what grounds could they have for
complaining now?
At the close of the hearing I asked all parties to explain, either by oral argument
then and there or in their briefs, what inferences and conclusions they intended should
be drawn from many exhibits and facts which had been put in evidence, and as to
which there had not been articulated clear contentions. They were cautioned that
unless the party who burdened the record with factual material clarified his purpose in
doing so, or advanced an understandable argument based upon it, those matters might
not be fully appreciated, particularly in view of the length of the record Despite this
invitation and admonition, no oral argument was offered, and in its brief the Respond-
ent does not mention any of this post unfair labor practice material at all.
Absent any argument based on these events, it may be that the Respondent has
abandoned an original intention to rely upon them either to defeat the complaint or
to limit the remedial order. There is no reason to speculate concerning its possible
contentions, or to consider and dispose of arguments that may never be advanced.
In any event, no sufficient reason appears for departing, even with respect to these
last eight stores, from the Board's established practice to order a Respondent who has
illegally refused to bargain with the majority representative of its employees, to do
so on request once the illegal refusal had been found. The fact that long after the
commission of the unfair labor practices, indeed during the very hearing on the
charges, a union sees fit to sign a contract, or the respondent employer complies with
its basic duty under the Act, is not in itself reason to do otherwise.51 There may be
any number of reasons why such a union would settle for whatever it can obtain
while awaiting the positive assurance of good-faith bargaining compelled by Board
order. Indeed the nature and extent of the unfair labor practices committed in this
case may well explain why several locals, despite the disparagement which had been
heaped upon them, acceded to the Respondent's desire and met with it again before
their proper status could be established in the minds of the employees by the Board's
corrective process. In some of these stores the advertised benefits were still being
awaited, and the employees had been told they were at a disadvantage only because
they had reaffirmed their attachment to the Union. Every day that passed, therefore,
placed the Union in a more and more impossible position, the very goal which the
August company elections sought. If, in such circumstances, the Union attempted
to salvage a measure of esteem in the eyes of the employees by accepting whatever
they could on their behalf, it hardly becomes reason to relieve the Respondent from
any other obligation now.
Nor does the Union's refusal to bargain, after the events, on the basis which the
Respondent deemed appropriate, either defeat the complaint or otherwise put an
end to the case. The propriety of the Union's conduct is not at issue in this pro-
ceeding; the basic question, whether on the merits of the complaint or the scope of
the remedy, remains the good or bad faith of the Company. As already found the
Respondent rejects not only the fundamental statutory principle of an employer's
duty to bargain in good faith with its employees' chosen representative, but also the
statutory scheme charging the Board with the public duty and responsibility to pass
upon unfair labor practice charges and to determine questions concerning repre-
N L.R.B. v. Mea,ia Textile Mills, Inc., 339 U.S. 563:
The Act does not require the Board to play hide-and-seek with those guilty of unfair
labor practices.
MONTGOMERY WARD AND CO., INCORPORATED 1265
sentation presented to it. It was this total attitude, illegal in every respect, with
which the local unions refused to cooperate when they viewed the belated invitations
to bargain as "offering the fruits of illegal conduct." If they viewed the offers as
less than good-faith proposals, they had reasonable grounds for their belief. It is
this pervasive attitude of the Respondent, that an employer may with impunity arouse
decertifiaction impulses in employees with economic enticement and then frame the
procedures of collective bargaining as inimical to improved conditions of employ-
ment, that must stop. The Union was not obligated to play the part of a pawn in
the process of collective bargaining as the Respondent illegally conceives it. Cer-
tainly, the refusal to join in completion of the Respondent's long-range program has
no bearing, in the circumstances of this case, upon what an appropriate remedy
must be.
There is further affirmative action that must be taken by the Respondent now to
undo the coercive effects of its antiunion activities, in many locations still eroding
the prestige of the Union and continuously operating to bring about abandonment of
the collective-bargaining agent. In each of the 26 stores where the August elections
took place the Respondent offered the employees the entire economic settlement
reached with the International earlier that month, but only as a benefit conditioned
upon rejection of the Retail Clerks local. Fifteen stores voted against the Union and
were forthwith rewarded unilaterally with all the terms of the contract. In 11 stores
the employees either voted in favor of the Union, or refused to cast a majority vote
against it. The economic improvements were withheld from them; in some stores
the local union reluctantly later met with company representatives, a few even signed
contracts. In four of them-San Luis Obispo, Maryville, Muskegon and Butler-
all the advantages, including both the company benefits spoken of in May and the
terms negotiated with the International, are being withheld to this day. I shall rec-
ommend that the Respondent be ordered to place all these improved conditions of
employment in effect in these 11 stores retroactively to September 1, 1963, when
the employees who acceded to the Employer's inducement and voted against the
Union, received them. Where the local Union later consented to unilateral action
by the Company, or signed the national agreement and thereby agreed to make the
economic terms effective, the period of retroactivity will be shortened. Such later
events, however, cannot serve to relieve the Respondent of the obligation to undo
the direct illegal discrimination in employment which it imposed on these employees
in August. Its conduct was a clear violation of both Section 8 (a) (1) and (5) of the
Act; any remedy short of this direct compensation means that the very disadvantage
in working conditions which the Respondent attached to continued union preference
will have been suffered by the employees without redress.52
I shall also recommend that the Respondent be ordered to execute the contract
regularly negotiated on a national basis for four stores-Punxsutawney, Mt. Vernon,
Chico, and DuBois. These locations were included in the bargaining which con-
tinued through August in Chicago when the final settlement was reached. At each
store the employees voted to ratify, and the further agreement to place the terms
of the contract in effect was carried out. Nothing remained but the formality of
signing the separate agreements. Meanwhile, as the final language was being drafted,
the Company posted a notice at two stores, advising the employees that the moment
the signatures appeared on the final document, for the first time all employees would
be required to join the Union. In each of these stores the decertification petitions
were filed before the contract language was finalized and quickly the Respondent
refused to recognize the Union further or to execute the contract.
Although the petitions were filed at that later time, the pattern of illegal conduct
extended to these stores also, with the usual May speeches, and the usual assistance
to decertification petitioners. If anything, the extent of local management partici-
pation in the movements was more marked here than at many other locations. In
these circumstances, effective remedial action requires that the contract be executed,
else once again the illegal objective of depriving the Union of any credit in the eyes
of the employees for benefits regularly negotiated in collective bargaining will have
been successfully accomplished.5s
There is some indication that at one or two of these four locations where the
agreement had been ratified and put in effect, with only the signing formality remain-
ing, the parties were in process of preparing a side letter, also agreed upon at Chi-
cago, waiving union initiation fees for old employees who would have to become
members. This was a very minor matter, and the Respondent's outright refusal to
52 N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333.
53 H. J. Heinz Company v. N.L.R.B., 311 U.S. 514.
206-446-66-vol. 154-81
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sign a contract already delivered, or to send one to the particular local at all, was
based entirely upon the same kind of alleged questions concerning representation
which it advanced at all other locations. There is no indication that the matter of
the side letter in any way interfered with the regular signing of the agreement.
At Alamosa and Meadville, where the refusals to bargain came originally before
the national settlement was negotiated and where the employees voted in favor of
the Union in the company elections, the parties were talking contract while the
hearing was in process months later. There is positive evidence on the record that
here the side letter relating to union security had become a stumbling block. The
record as a whole does not support the General Counsel's contention that the
Respondent refused to sign the agreed-upon contract at these two locations because
the local refused to withdraw pending unfair labor practice charges.
Moreover, the evidence does not prove, as the General Counsel also asserts, that
at the national settlement in Chicago on August 7 the parties agreed that in the
event any of the decertification petitions then pending should be "dismissed or with-
drawn," the same agreement would automatically be signed for all those locations,
and that by such general talk the Respondent intended to be bound even if the
"dismissals" were perfunctory administrative steps taken by the Regional Officers in
carrying on the unfair labor practice proceedings.
I shall also recommend the usual posting of notices to assure the employees that
they will henceforth be free of coercion and restraint from the Respondent in the
exercise of their statutory rights to self-organization and to engage in collective
bargaining through any union of their choice. In the special circumstances of this
case the Respondent will also be required to post such a general notice in those stores
which are not named in the complaint but where the May benefits speech was given
because a Retail Clerks Local represented the employees in the spring of 1963. The
illegal intent to provoke decertification movements was present in these speeches
also; as elsewhere the speakers were fortified with the decertification brochures,
ready to "assist" the employees. Whatever the extent of the inevitably coercive
effect of the speeches may have been upon these employees, it must be dissipated by
appropriate notices of assurance.
And, clearly, the overall unfair labor practices found also require that the
Respondent be ordered to cease and desist from in any other manner infringing upon
the rights guaranteed employees by Section 7 of the Act.
Upon the basis of the above findings of fact and upon the entire record, I make
the following;
CONCLUSIONS OF LAW
1. Montgomery Ward & Co., Incorporated, is an employer within the meaning of
Section 2(2) of the Act.
2. Retail Clerks International Association, AFL-CIO, and each of its locals listed
on the attached Appendix A and B, are labor organizations within the meaning of
Section 2(5) of the Act.
3. All employees included in the bargaining units set out in the collective-bargaining
agreements and/or Board certifications in effect during the month of May 1963
at each of the separate store locations of the Respondent listed on Appendixes A
and B, separately constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
4. Each of the locals of International Retail Clerks Association, AFL-CIO, listed
on Appendix A and B, were in May 1963, and at all times since have been the
exclusive bargaining representatives of all the employees in the aforesaid bargaining
units at the indicated locations for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.54
5. By refusing to bargain collectively with the listed local unions, as the exclusive
representatives of the employees in the aforesaid appropriate units, as found above,
the Respondent has engaged in, and is engaging in unfair labor practices within the
meaning of Section 8(a) (5) of the Act.
6. By discriminating against Edward Marak, William Kaiser, Carl Miklovic, James
Rorabaugh, Delmar Sheely, and Esther Angleton in regard to their hire and tenure
of employment because of their refusals, on inquiry, to reveal whether they had
given statements to Board agents, what the contents of such statements were, or
their knowledge of matters pertaining to unfair labor practice charges filed against
the Respondent, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(4) of the Act.
51 For Portland , Oregon, see footnote 2. .
MONTGOMERY WARD AND CO., INCORPORATED 1267
7. By the foregoing conduct, by polling and interrogating employees regarding
their preference for or against union representation, by offering, granting, and
promising employees improved benefits in terms and conditions of employment to
induce them to reject their collective-bargaining representative, by requesting employ-
ees to furnish it copies of affidavits given by them to a Board agent investigating
unfair labor practice charges filed against it, by interrogating employees regarding
the contents of such affidavits, by threatening employees with discharge or disci-
plinary action for refusing to state whether they had been interviewed by a Board
agent or had given affidavits or statements in connection therewith, or for refusing
to answer any questions asked by Respondent's agents during its investigation of
unfair labor practice charges filed against it, and by encouraging , assisting , and insti-
gating employees to circulate and file union decertification petitions and to discon-
tinue paying union dues and to resign from a union, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of
the Act.
8. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this case, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, I hereby recommend that Respondent, Montgomery
Ward & Co., Incorporated, Chicago, Illinois, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the local unions affiliated with Inter-
national Retail Clerks Association, AFL-CIO, as listed on Appendixes A and B,
as the exclusive bargaining representatives of all employees of Respondent in the
appropriate bargaining units indicated above, with respect to rates of pay, wages,
hours of employment, and other terms and conditions of employment.
(b) Laying off or otherwise discriminating against employees because of their
refusal to reveal whether they have given statements to Board agents, what the
contents of such statements was, or their knowledge of matters pertaining to unfair
labor practice charges filed against the Respondent.
(c) Polling or interrogating employees regarding their preference for or against
union representation, offering, granting, and promising employees improved benefits
in terms and conditions of employment to induce them to reject their collective-
bargaining representative, requesting employees to furnish it copies of affidavits
given by them to Board agents investigating unfair labor practice charges filed
against it, interrogating employees regarding the contents of such affidavits, threat-
ening employees with discharge or disciplinary action for refusing to state whether
they had been interviewed by a Board agent, and whether they had given affidavits
or statements in connection therewith, or for refusing to answer any questions
asked by Respondent's agents during its investigation of unfair labor practice charges
filed against it, or encouraging, assisting, and instigating employees to circulate and
file union decertification petitions and to discontinue paying union dues or to resign
from a union.
(d) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form labor organizations, to
join or assist any local union of International Retail Clerks Association, AFL-CIO,
or any other labor organization, to bargain collectively through representatives of
their own choosing and to engage in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, or to refrain from engaging in
such activities, except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as authorized in Section 8(a)(3) of
the Act, as amended.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Upon request, bargain collectively with each of the local unions listed on
Appendix A as the exclusive representative of all employees in the indicated appro-
priate units, and embody any understanding reached in a signed agreement.
(b) If requested to do so by Local 1436 (Punxsutawney and DuBois bargaining
units), Local 17 (Chico bargaining unit), and Local 806 (Mt. Vernon bargaining
unit), sign forthwith the full contract agreed upon in August of 1963 between the
Retail Clerks International Association, AFL-CIO, and the Respondent and ratified
by the local unions, and deliver two copies thereof for each bargaining unit to the
respective-Local Union:
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) If no such request is made, then, upon request, bargain collectively with
Local Unions 1436, 17, and 806, as the exclusive representatives of all employees
in the appropriate units at Punxsutawney, DuBois, Chico, and Mt. Vernon, respec-
tively, and embody any understanding reached in a signed agreement.
(d) Make whole Edward Marak, William Kaiser, Carl Miklovic, James Rora-
baugh, Delmar Sheely, and Esther Angleton for any loss of pay they may have suf-
fered by reason of the discrimination against them, with interest on any amounts due
at 6 percent per annum.
(e) Post at each of its retail store locations listed on Appendix A the attached
notice marked "Appendix C." 55 Post at each of its retail store locations at Punx-
sutawney, DuBois, Chico, and Mt. Vernon (Illinois) the attached notice marked
"Appendix D." 56 Post the attached notice marked "Appendix E" 57 at Baker,
Southgate , Royal Oak, Pittsburg, La Junta, Modesto, Woodland, and at each of the
retail store locations, not listed in the complaint, but where in May 1963 the employ-
ees were covered by a collective-bargaining contract with a local union of Interna-
tional Retail Clerks Association, AFL-CIO, or where such a local union was other-
wise the recognized exclusive majority representative.78 Copies of said notices, to
be furnished by the Regional Director for Region 13, shall, after being duly signed
by Respondent's representative, be posted by Respondent 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.
(f) Notify the Regional Director for Region 13, in writing, within 20 days from
the date of the receipt of this Decision, what steps the Respondent has taken to
comply herewith.59
55 In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words " the Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order".
ce Ibid.
57 Ibid.
us In his brief the General Counsel waived an affirmative bargaining order for South-
gate and Royal Oak, and during the hearing stated the same position for Pittsburg, La
Junta, Modesto , and Woodland.
se In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director , in writing, within 10 days
from the date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX A
Local Local
La Grange--------------------- 300 Alamosa---------------------- 7
Carlinville--------------------- 1053 Las Vegas--------------------- 1564
Marietta ---------------------- 1059 Madera ----------------------- 170
Butler ------------------------- 1407 San Luis Obispo---------------- 899
Meadville --------------------- 1538 Merced ------------------------ 170
Port Huron-------------------- 876 Sacramento-------------------- 588
Petoskey---------------------- 11 Anchorage -------------------- 1496
Muskegon--------------------- 807 Spokane----------------------- 1439
Hillsdale-------------- -------- 10 Longview---------------------- 148
Jefferson City------------------ 782 Portland-----------------------1 1257
Kansas City ------------------- 782 Richmond--------------------- 1179
Maryville---- ------------------ 988 San Jose----------------------- 428
El Dorado--------- ------------ 809 Ponca City -------------------- 809
Pueblo ------------------------ 24 Salisbury---------------------- 692
1 See footnote 2a.
APPENDIX B
Local Local
Southgate--------------------- 876 Woodland--------------------- 588
Royal Oak --------------------- 876 Punxsutawney------------------ 1436
]Pittsburg (Calif.)--------------- 1179 DuBois------------------------ 1436
La Junta---------------------- 7 Chico------------------------- 17
Modesto----------------------- 588 Mt. Vernon ( Ill.)_.------------- 806
MONTGOMERY WARD AND CO., INCORPORATED
APPENDIX C
1269
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that:
WE WILL upon request, bargain collectively with Local ,i International
Retail Clerks Association, AFL-CIO, as the exclusive bargaining representative
of all employees in the following bargaining unit with respect to rates of pay,
wages, hours of employment, and other conditions of employment, and if an
understanding is reached, embody such understanding in a signed agreement.
The bargaining unit is: 2
WE WILL NOT encourage, assist, or instigate our employees to circulate and
file union decertification petitions or to discontinue paying union dues or to
resign from a union.
WE WILL NOT lay off or otherwise discriminate against employees because of
their refusal to reveal whether they have given statements to Board agents, what
the contents of such statements are, or their knowledge of matters pertaining
to unfair labor practice charges filed against us.
WE WILL NOT request our employees to furnish us with copies of statements
they may have given to the National Labor Relations Board or interrogate them
with respect to the contents thereof.
WE WILL NOT poll or interrogate our employees regarding their preference
for or against union representation, offer, grant, or promise our employees
improved benefits in terms and conditions of employment to induce them to
reject their collective-bargaining representative, or threaten our employees with
discharge or disciplinary action for refusing to state whether they have been
interviewed by a Board agent or have given affidavits or statements in connec-
tion therewith, or for refusing to answer any questions during our investigation
of unfair labor practice charges filed against us.
WE WILL make whole Edward Marak, William Kaiser, Carl Miklovic, James
Rorabaugh, Delmar Sheely, and Esther Angleton, for any loss of earnings they
may have suffered as a result of the discrimination against them.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form, join, or
assist any labor organization, to join or assist International Retail Clerks Asso-
ciation, AFL-CIO, or any of its locals, to bargain collectively through repre-
sentatives of their own choosing, to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, and to refrain
from any or all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8(a)(3) of the National
Labor Relations Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
All our employees are free to become, remain, or refrain from becoming or
remaining, members of any labor organization.
MONTGOMERY WARD & Co., INCORPORATED,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 881 U.S.
Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illi-
nois, Telephone No. 828-7572, if they have any question concerning this notice or
compliance with its provisions.
' The Regional Director will insert at this place in the notice the appropriate local
union designation as shown on Appendix A.
2 The Regional Director will insert at this place In the notice the appropriate bargain-
ing unit description as explained in the body of the Trial Examiner ' s Decision.
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX D
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that:
IF REQUESTED to do so by Local ,1 International Retail Clerks Associ-
ation, AFL-CIO, we will forthwith sign the full contract agreed upon in August
1963 between the International Union and us, and ratified by our employees,
and deliver two copies thereof to the local union.
IF NO such request is made, we will, upon request, bargain collectively with
Local ,2 International Retail Clerks Association, AFL-CIO, as the
exclusive bargaining representative of all employees in the following bargaining
unit with respect to rates of pay, wages, hours of employment, and other condi-
tions of employment, and if an understanding is reached, embody such under-
standing in a signed agreement. The bargaining unit is: 3
WE WILL NOT encourage, assist, or instigate our employees to circulate and file
union decertification petitions or to discontinue paying union dues or to resign
from a union.
WE WILL NOT lay off or otherwise discriminate against employees because of
their refusal to reveal whether they have given statements to Board agents, what
the contents of such statements are, or their knowledge of matters pertaining to
unfair labor practice charges filed against us.
WE WILL NOT request our employees to furnish us with copies of statements
they may have given to the National Labor Relations Board or interrogate them
with respect to the contents thereof.
WE WILL NOT poll or interrogate our employees regarding their preference for
or against union representation, offer, grant, or promise our employees improved
benefits in terms and conditions of employment to induce them to reject their
collective bargaining representative, or threaten our employees with discharge
or disciplinary action for refusing to state whether they have been interviewed by
a Board agent or have given affidavits or statements in connection therewith, or
for refusing to answer any questions during our investigation of unfair labor
practice charges filed against us.
WE WILL make whole Edward Marak, William Kaiser, Carl Miklovic, James
Rorabaugh, Delman Sheely, and Esther Angleton, for any loss of earnings they
may have suffered as a result of the discrimination against them.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form, join, or
assist any labor organization, to join or assist International Retail Clerks Associa-
tion , AFL-CIO, or any of its locals, to bargain collectively through representa-
tives of their own choosing, to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, and to refrain from any
or all such activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a condition of
employment, as authorized in Section 8(a)(3) of the National Labor Relations
Act, as modified by the Labor-Management Reporting and Disclosure Act of
1959.
All our employees are free to become, remain, or refrain from becoming or remain-
ing, members of any labor organization.
MONTGOMERY WARD & CO. INCORPORATED,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 881 U.S.
Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois,
Telephone No. 828-7572, if they have any question concerning this notice or com-
pliance with its provisions.
:'The Regional Director will insert at this place in the notice the appropriate local
union designation as shown on Appendix B.
2 Ibid.
8 The Regional Director will insert at this place in the notice the appropriate bargain-
ing unit description as explained in the body of the Trial Examiner's Decision.
OVERNITE TRANSPORTATION COMPANY 1271
APPENDIX E
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that:
WE WILL NOT refuse to bargain collectively with any local union affiliated with
International Retail Clerks Association , AFL-CIO , which is the exclusive bar-
gaining representative of our employees in an appropriate bargaining unit.
WE WILL NOT encourage , assist, or instigate our employees to circulate and file
union decertification petitions or to discontinue paying union dues or to resign
from a union.
WE WILL NOT lay off or otherwise discriminate against employees because of
their refusal to reveal whether they have given statements to Board agents, what
the contents of such statements are, or their knowledge of matters pertaining
to unfair labor practice charges filed against us.
WE WILL NOT request our employees to furnish us with copies of statements
they may have given to the National Labor Relations Board or interrogate them
with respect to the contents thereof.
WE WILL NOT poll or interrogate our employees regarding their preference for
or against union representation , offer, grant , or promise our employees improved
benefits in terms and conditions of employment to induce them to reject their
collective -bargaining representative , or threaten our employees with discharge
or disciplinary action for refusing to state whether they have been interviewed
by a Board agent or have given affidavits or statements in connection therewith,
or for refusing to answer any questions during our investigation of unfair labor
practice charges filed against us.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their right to self-organization , to form , join, or
assist any labor organization , to join or assist International Retail Clerks Associa-
tion, AFL-CIO, or any of its locals, to bargain collectively through representa-
tives of their own choosing , to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, and to refrain from any
or all such activities , except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of
employment , as authorized in Section 8(a)(3) of the National Labor Relations
Act, as modified by the Labor -Management Reporting and Disclosure Act of
1959.
All our employees are free to become, remain , or refrain from becoming or remain-
ing, members of any labor organization.
MONTGOMERY WARD & CO., INCORPORATED,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office , 881 U.S.
Courthouse and Federal Office Building , 219 South Dearborn Street , Chicago , Illinois,
Telephone No. 828-7572, if they have any question concerning this notice or com-
pliance with its provisions.
Overnite Transportation Company and Truck Drivers and Help-
ers Local Union 728, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America . Case No. 10-CA-5666. September 15, 1965
DECISION AND ORDER
On November 30, 1964, Trial Examiner James F. Foley issued his
Decision in the above-entitled proceeding, finding that the Respondent
154 NLRB No. 98.