Montgomery Ward and Co., Inc.

National Labor Relations Board - Board DecisionsNov 16, 1976

226 N.L.R.B. 961 (N.L.R.B. 1976)

MONTGOMERY WARD & CO Montgomery Ward and Company , Inc. and Teamsters Local Union 648 , International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America . Cases 3-CA-6296 and 3-RC- 6394 November 16, 1976 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER On July 13, 1976, Administrative Law Judge Ivar H. Peterson issued the attached Decision in this pro- ceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel riled cross-exceptions and a brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order,' as modified below. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified herein and hereby orders that the Respondent, Montgomery Ward and Company, Inc., Plattsburgh, New York, its officers, agents, successors, and as- signs, shall take the action set forth in the said rec- ommended Order as so modified: 1. Delete paragraph 1(b), relettering accordingly, and insert the following as paragraph 1(f): "(f) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act." ' We find it unnecessary to pass on the Respondent's only exception that the speech made to its employees by its regional labor relations representa- tive did not, as found by the Administrative Law Judge, unlawfully create the impression that it would be futile for its employees to select a collective- bargaining representative In light of findings that the Respondent engaged in numerous other violations of Sec 8 (a)(I), to which no exceptions have been filed , the finding which the Respondent does attack is cumulative Therefore , we dismiss that allegation of the complaint and shall amend the Administrative Law Judge 's recommended Order in that respect Unlike his colleagues , Member Fanning would adopt the Administrative Law Judge's findings The General Counsel excepts to the Administrative Law Judge 's failure to conform the notice to employees to his conclusions of law and recom- mended Order We find merit to this exception and shall amend the notice accordingly. 961 2. Delete from paragraph 2(a) the phrase "or create the impression that it would be futile for them to select the Union as their representative." 3. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that Case 3-RC-6394 be, and it hereby is, remanded to the Regional Director for Region 3 for appropriate action. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten to discharge employees or to take other reprisals if they become or re- main union members. WE WILL NOT question employees about their union membership, activities, or desires. WE WILL NOT promise economic and other benefits if employees refrain from becoming or remaining union members, or assisting or sup- porting a union. WE WILL NOT threaten to withhold wage in- creases or other benefits because a union files objection to an election. WE WILL NOT solicit employees to have objec- tions to an election withdrawn nor promise wage increases in order to persuade employees to do so. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to join or assist Teamsters Local Union 648, In- ternational Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or any other labor organization, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or pro- tection. MONTGOMERY WARD AND COMPANY, INC. DECISION STATEMENT OF THE CASE IVAR H. PETERSON, Administrative Law Judge. The hear- ing in this case was held in Plattsburgh, New York, on March 3 and 4, 1976, upon the complaint issued by the Regional Director for Region 3 on December 3, 1975, based upon a charge, subsequently amended, filed by Teamsters Local 648, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, 226 NLRB No. 151 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD herein called the Union, on October 29, 1975. In substance, the complaint alleged that named representatives of Re- spondent had threatened employees with discharge and other reprisals if they became or remained members of the Union or gave it assistance or support, had created the impression among the employees that it would be futile for them to select the Union as their bargaining representative, had questioned its employees concerning their union mem- bership, activities, and desires, had made promises of eco- nomic benefits to employees if they refrained from becom- ing or remaining members of the Union or giving it any assistance or support, had threatened to withhold wage in- creases and other benefits from them because the Union had filed objections to an election in a prior representation case , and had solicited employees to obtain the withdrawal of objections filed by the Union and, in that regard, had promised them wage increases if they would do so. This conduct, according to the complaint, constituted violations of Section 8(a)(1) and Section 2(6) and (7) of the Act. On December 15, 1975, the Regional Director issued his decision on the objections to the election, finding that Re- spondent had, during the critical period between the filing of the Union's petition and the date of the election (Octo- ber 23), threatened plant closure, more onerous working conditions, and potential subcontracting of bargaining unit work in order to dissuade its employees from selecting the Union. In the same decision, he ordered that the represen- tation and complaint cases be consolidated for hearing. In its answer , received on January 5 and amended on January 26, 1976, Respondent admitted certain jurisdic- tional allegations and, in addition, admitted that James Walsh and Philip Hansen occupied the status of supervi- sors, but denied that such was the case with respect to Gary Trost and Gary Feinberg. In other respects, Respon- dent denied that it had engaged in any unfair labor prac- tices. In the motion to amend its answer, Respondent re- quested a postponement of the hearing, then set for February 25, for the reason that its appeal from the Re- gional Director's denial of its request for information un- der the Freedom of Information Act was then pending be- fore the General Counsel. Under date of February 2, 1976, the Acting Regional Director denied the request for post- ponement. Under date of February 13, 1976, the Acting Regional Director amended the complaint in a minor re- spect, and, on February 20, rescheduled the hearing, origi- nally set for February 25, for March 3. Upon the entire record in the case ,i and after consider- ing the briefs filed with me by counsel on April 20, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent , an Illinois corporation , has, at all material times , maintained a retail store and warehouse at Pyramid Mall, Route 3 , in Plattsburgh , New York, and various other retail stores, warehouses , and other facilities in Illi- 'Pursuant to leave granted , counsel for the General Counsel supplied certain exhibits after the close of the hearing noes, Maryland, and other States. Admittedly, Respondent at its stores and warehouses has been engaged in the sale and distribution of various merchandise and has engaged in business, including operations at its Plattsburgh ware- house, the only facility involved in this proceeding, coming within the jurisdictional requirements of the Act and the Board. Admittedly Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and the Union is a labor organization within the meaning of Section 2(5) of the Act. Respondent admits that Walsh and Hansen are supervisors within the meaning of the Act, but denies that Trost and Feinberg occupy that status. IL THE ALLEGED UNFAIR LABOR PRACTICES A. Sequence of Events Counsel for the General Counsel contends that almost immediately after the employees of Respondent, during the first week of August 1975, signed authorization cards for the Union Respondent embarked "on an antiunion cam- paign blatantly designed to coerce employees in the exer- cise of their free choice." According to Government coun- sel, the leading advocate in behalf of the Union was Archie Jones. A few days prior to the filing of the representation petition by the Union, on August 11, in Case 3-RC-6394, Jones spoke with Trost, Respondent's warehouse manager, indicating that the employees desired that the Union repre- sent them in collective bargaining. Trost conferred with Donald Herbert, Respondent's operating manager, and thereafter spoke to employees with respect to Respondent's policy and attitude toward employee organization. There is no dispute that Trost told the employees that they would be making a mistake by joining a union and, if the Union got into the plant, the employees would lose existing bene- fits. On subsequent occasions, this view was communicated to employees. Thus, Gary Patterson, a warehouseman, tes- tified that on October 13 Supervisor Walsh, in speaking to a group of employees, stated that if the employees had a union the management would "be watching us" and could discharge employees "for any little thing, like smoking a cigarette or doing something like that." Walsh admitted making a statement to that effect. There is no question but that Trost questioned employ- ees as to their union sympathies, told them that wages and benefits would remain the same and might be reduced, if they voted for the Union, and threatened employees with more onerous working conditions, discharge, and subcon- tracting of home delivery work if they selected the Union. General Counsel contends that, while Respondent "does not dispute that these conversations took place, it attempts to justify them by maintaining that Trost was merely re- sponding to claims made by the Union and only expressing his own opinion." However, the record, in my view, makes clear that Trost initiated these conversations and that he was not only expressing his personal opinion but was also implementing what appears quite clearly to have been the view of admitted officials of Respondent. The transcript of a recording of a talk made by Feinberg on October 7 to employees shows that he referred to the MONTGOMERY WARD & CO. situation in the Hagerstown store and stated that the ware- house employees at that location became interested in the Union in November 1974 and although the union there won an election no contract had yet been achieved. He stated , with reference to demands made by the union in Hagerstown , that Respondent told employees that it would "just as soon go out of business in Hagerstown and con- tract out our own delivery operations than pay that kind of money because we can ' t afford to ." He also stated that Respondent "firmly" did not "want to have a union here" and that the rumor that Respondent 's employees in Albany ,.will go out on strike in sympathy for the employees here" was "so totally a he, it's ridiculous ." He pointed out that the Albany store had a contract containing a no-strike clause and that "any employee who strikes in violation of a no-strike clause is subject to discharge ," and stated that he hoped the employees would vote against the Union. He went on to comment that "union or no union either way we are going to pay our employees a competitive wage." He referred to the fact that Respondent had "the same fringe benefit program in every location in the country ." Counsel for the General Counsel, in his brief , argues that by such comments Feinberg "very clearly was telling those employ- ees that it didn't matter if there was a union at the Platts- burgh store or not , they could expect no difference in their wages or fringe benefits than what they were presently get- ting." Again referring to the situation in the Hagerstown store , where the employees had selected the Teamsters as their representative , he stated that those employees "still do not have a contract ," that "they haven ' t got an in- crease," and that "they are now paying dues and initiation fees and they don't even have a contract and I don't know if they ever will." He stated that if the employees voted for the Union and the parties began negotiations for a con- tract , "if the Union kept insisting on these high wage de- mands," and he continued to reject them , Respondent would "just as soon let you go out on strike like in Red- ding, California ," a strike which he stated had lasted for 4 years, "because if I agreed to that high wage increase, next thing you know we 'd have employees all over the place saying well we ought to go Teamsters because look at the kind of money that they negotiated for them up in Platts- burgh and that 's the main reason why I would never agree to that ." He also stated that if the employees went on strike the Respondent would only be subjected to minimum pres- sure because it would put a lock on the door and close the store before it would agree to a noncompetitive rate. Coun- sel for the General Counsel characterizes Feinberg's mes- sage as "simple , the Company didn' t want a union and if the employees voted for a union bargaining would be fu- tile." In addition , Feinberg thought that "working condi- tions would be a lot different if we had a union contract, and I think right now there is a certain amount of freedom of action , right now. I don't think anybody is looking at his watch every second of the time to see how long a break you take and things like that but when you are under a union contract, there is a certain number of minutes for a rest period , a certain amount of time for breaks, you have to be in at a certain hour and you get written up if you don't do it. I think that's the kind of atmosphere we have in a union location . That's another reason that the Company would 963 hate to see the Union come in here because once a union comes in your manager and you are always at each other's throats." He concluded by saying that he thought Walsh had treated the employees fairly and, in his view , "if the Union comes in you are going to see a lot different atmo- sphere , and I can tell you . . . that you aren' t going to see any great increase in your take home pay, only because we've never yet agreed to . . . anything other than what the wage increases are in" contracts he had mentioned cov- ering other stores, and further stated that employees "will see dues taken out of your paycheck and I don't think you are getting your money's worth." At an employees ' meeting on October 13, Hansen, the operating manager of the Rome , New York, store , spoke. According to employee Jones, Hansen stated that Respon- dent, "instead of paying a high hourly rate to the men, which was not competitive , that they would just as soon close the doors ." Hansen testified that he told the employ- ees that rates of pay at the Rome store , which was covered by a contract with the Teamsters , "were comparable to what they were getting." He was not asked about the fore- going remark attributed to him by Jones. Jones further related that , on October 21, he had a con- versation with Trost, in which the latter asked if Respon- dent's truckdrivers would, if the Union achieved a con- tract , come under the terms applicable to over-the-road drivers, who were then receiving about $7 per hour and a mileage rate beyond a radius of 65 miles. Jones replied that he did not know. Trost then stated that Respondent, rather than pay such rates, would probably subcontract its truck and delivery service. I have not overlooked the argument made by counsel for the Respondent to the effect that the reliance placed by counsel for the General Counsel on the Board 's decision in the Uniontown case "is clearly misplaced ." [Montgomery Ward & Co., 222 NLRB 965 (1976)]. In support , he refers to the fact that in that case two Members of the Board disavowed Administrative Law Judge Ricci 's comment in- sofar as it implied that the respondent had an "established antiunion policy extending beyond the parameters of this case." Member Jenkins , however, did not join in that disa- vowal, stating that it was "plain that labor Relations Man- ager Feinberg's conduct was in furtherance of and based upon what he himself set out as Respondent's uniform pol- icy to refuse to bargain in good faith with unions repre- senting its employees ." Counsel further points out that, as Feinberg testified in the present case , Respondent has a long history of bargaining with the Teamsters on a national basis through the Teamsters-Montgomery Ward Joint Council, as well as on a local basis. B. Discussion and Conclusions We turn first to a consideration of the status of Trost who, as previously stated , holds the position of warehouse manager . Respondent's warehouse is located about a quar- ter of a mile from the retail store . It houses the store's inventory, receives shipments brought by Respondent's own fleet and by common carrier , loads Respondent's own trucks for local delivery of merchandise to the homes of customers, delivers merchandise , and repairs appliances 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sold by Respondent, either in the warehouse or in the homes of customers. Prior to the election, Respondent op- erated two delivery trucks which were manned by a driver and helper. After being loaded in the morning, the trucks went on their delivery routes and returned at the end of the day. After the departure of the drivers and helpers, the employees remaining at the warehouse were Trost, Jones, and Patterson. Another employee, one Gladue, worked from 5 o'clock in the afternoon until 10 at night Monday through Wednesday and from 1 to 10 p.m. on Saturday. A part-time employee began working in the warehouse in September. Jones and Patterson worked alternate Satur- days and had the following Monday off, with the result that Trost worked with one warehouseman on Mondays, and two from Tuesday to Friday. The man working night shift moved merchandise that was to be delivered the fol- lowing day to the loading dock, where it would be loaded the following morning by the truckdnvers, helpers, and the warehousemen. If truckdnvers returned with undelivered merchandise, it was unloaded the following morning by a truckdriver and a helper. The Respondent's trucks, as well as those of common carriers, were unloaded by Jones, Pat- terson, and Trost with the aid of various labor-saving de- vices. The paperwork that was involved in connection with the receipt of merchandise was, for the most part, per- formed by Trost. From April to November 1975, Trost received an hourly wage of $3.50, whereas warehouse em- ployees were paid between $2.50 and $3.10 per hour. In November Trost was raised to $160 per week, or $4 per hour; the highest wage then paid a warehouseman was $2.78 per hour while truckdrivers received $3.10 per hour. Testimony shows that employees in the warehouse look to Trost for direction and supervision; he reassigns work us- ing his own judgment, gives employees time off, handles their complaints and grievances, imposes discipline, ven- fies the time worked by employees, and assigns overtime. In addition, Trost makes appraisals of all warehouse em- ployees as well as recommendations for wage increases and/or corrective action. This appraisal system of Respon- dent is used as a basis for making wage increases or impos- ing corrective action, including termination. I am persuad- ed and find that Trost occupies a supervisory position and, therefore, that he is a representative of management.' With respect to Feinberg, an attorney and regional la- bor relations representative of Respondent, I am persuad- ed that he also is a representative of management. In the prior case, supra, involving Respondent's Uniontown, Pennsylvania, store, my colleague, Administrative Law Judge Ricci, found that Feinberg spoke to employees there on several occasions, "to insure that the employees did not vote for union representation" and that "he candidly ad- mitted that among his duties" he advised and participated in counter-organizational efforts. In that case, the union lost by a vote of 67 to 37. Administrative Law Judge Ricci stated that the "sole question to be decided here is whether his [Feinberg's] carefully articulated and repeated message, voiced again a little here and a little there throughout the store also by various supervisory personnel, improperly in- 2 In the representation case, the Respondent, by Feinberg, stipulated that Trost was a supervisor He was omitted from the eligibility list terfered with the election and unlawfully coerced the em- ployees." Administrative Law Judge Ricci found that the respondent violated the Act, not only by Feinberg's con- duct and statements but also by reason of other activity. The Board affirmed his findings and adopted his recom- mended Order.' Upon the entire record, I find that, by the foregoing conduct and statements of Trost, Feinberg, and Hansen, Respondent violated Section 8(a)(1) and Section 2(6) and (7) of the Act. Ill. THE OBJECTIONS TO THE ELECTION On September 22, 1975, the Regional Director issued a Decision and Direction of Election in the following appro- priate unit: All drivers, drivers' helpers, stock helpers, repair ser- vice technicians, repair service clerks and service con- tract solicitors employed by the Employer at its Platts- burgh, New York warehouse, but excluding all other employees, guards and supervisors as defined in the Act. Of the approximately 16 eligible voters, 8 voted for the Union and 8 voted against it. As previously stated, the Union filed objections claiming, in substance, that Respon- dent had threatened plant closure, more onerous working conditions, and potential subcontracting of bargaining unit work in order to dissuade the employees for supporting the Union. The Regional Director stated that, inasmuch as he had issued a complaint alleging that the above-described conduct of Respondent constituted unfair labor practices, he would consolidate the two cases for purposes of hearing. He further noted that the investigation had disclosed that Respondent had engaged in other conduct, not specifically alleged in the objections, which he had considered inas- much as he was not limited to the specific issues raised by the objections. He concluded that such additional conduct, if it did occur, could have been found to interfere with the election; inasmuch as such additional conduct was alleged in the complaint to be in violation of Section 8(a)(1) of the Act and noting that conduct alleged as an unfair labor practice may be considered in determining whether an election should be set aside, he concluded that these allega- tions and the investigation thereof raised substantial and material questions that could best be resolved by a formal hearing. Inasmuch as the conduct I have found to constitute vio- lations of Section 8(a)(1) of the Act also was alleged to have interfered with the conduct of the election , it neces- sarily follows that the election should be set aside and a new one conducted at such time as the Regional Director deems appropriate. I so recommend. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above have a close , intimate , and substantial relationship to trade, traf- J 222 NLRB 965 (1976) MONTGOMERY WARD & CO. 965 fic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Inasmuch as I have found that the Respondent has en- gaged in unfair labor practices , I shall recommend that it cease and desist therefrom and take appropriate affirma- tive action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case , I make the following: CONCLUSIONS OF LAW 1. Montgomery Ward and Company, Inc., is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and the Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. 2. By threatening its employees with discharge or other reprisals if they became or remained members of the Union; by creating the impression among its employees that it would be futile to select the Union as their represen- tative; by questioning employees concerning their union membership, activities, and desires; by promising its em- ployees economic and other benefits if they refrained from becoming or remaining members of the Union or giving it assistance or support; by threatening to withhold wage in- creases or other benefits from its employees -because the Union had filed objections to the election; and by solicit- ing employees to have the objections withdrawn and prom- ising them wage increases in order to induce them to do so, the Respondent violated Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and con- clusions of law, it is recommended that the National Labor Relations Board, pursuant to Section 10(c) of the Act, issue the following recommended: ORDER4 Respondent, Montgomery Ward and Company, Inc., Plattsburgh, New York, its officers, agents, successors, and assigns, shall: 4 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions , and Order, and all objections thereto shall be deemed waived for all purposes. 1. Cease and desist from: (a) Threatening its employees with discharge or other reprisals if they become or remain members of the Union. (b) Creating the impression among its employees that it would be futile for them to select the Union as their repre- sentative. (c) Questioning its employees concerning their union membership, activities, and desires. (d) Promising its employees economic and other bene- fits if they refrain from becoming or remaining members of the Union or giving it assistance or support. (e) Threatening to withhold wage increases or other benefits from its employees because the Union filed objec- tions to the election. (f) Soliciting employees to have the objections to the election withdrawn and promising them wage increases in order to induce them to do so. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Notify its employees, in writing, that it will not threaten them with discharge or other reprisals if they be- come or remain members of the Union or give it assistance or support; that it will not question them about their union membership, activities, or desires, or create the impression that it would be futile for them to select the Union as their representative; that it will not promise them economic or other benefits if they refrain from becoming or remaining members of the Union or assisting or supporting it; that it will not threaten to withhold wage increases or other bene- fits from its employees because the Union takes action in their behalf or induce or solicit employees to cause the Union to take certain action by promising them wage in- creases or other benefits. (b) Post at its premises in Plattsburgh, New York, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 3, after being duly signed by a representative of Respondent, shall be posted for 60 consecutive days there- after, in conspicuous places, including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other ma- terial. (c) Notify the Regional Director for Region 3, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 5 In the event the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "