Montgomery Ward & Co.

National Labor Relations Board - Board Decisions

Oct 29, 1938

9 N.L.R.B. 538 (N.L.R.B. 1938)

In the Matter Of MONTGOMERY WARD & COMPANY and REUBEN
LITZENBERGER, et al.
Case No. C-176.-Decided October 29, 1938
General Merchandising Mail Order Business-Interference , Restraint, and
Coercion: propaganda against union ; anti-union statements ; employment of
labor spies ; employer ordered to cease employing detectives to investigate
activities of employees in behalf of labor organizations-Discrimination: dis-
charge of union members ; charges of , not sustained as to certain employees-
Reinstatement Ordered-Back Pay: awarded-Company-Dominated Union: com-
plaint dismissed as to-Collective Bargaining : complaint dismissed as to charges
of failure to bargain collectively.
Mr. A. Norman Somers, for the Board.
Dey, Hanzpson, Nelson d Young, by Mr. Clarence J. Young, of
Portland, Oreg., and Mr. Stuart S. Ball, of Chicago, Ill., for the
respondent.
Gross & Anderson, by Mr. Harry L. Gross, and Mr. Ben Anderson,
of Portland, Oreg., and M. Anthony W. Smith, of Washington,
D. C., for the Union.
Mr. Julius Schlesinger, and Mr. Allan R. Rosenberg, of counsel to
the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by Reuben Litzenberger, Neil McLeod, and
William H. Shook, members of Weighers, Warehousemen, & Cereal
Workers' Local 38-123 of the International Longshoremen's Associa-
tion, herein called the Union, the National Labor Relations Board,
herein called the Board, by Charles W. Hope, Regional Director for
the Nineteenth Region (Seattle, Washington), issued its complaint,
dated February 3, 1937, against Montgomery Ward & Company,
Incorporated, Portland, Oregon, herein called the respondent, alleg-
ing that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Section 8
(1), (2), (3), and (5) and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act.
9 N. L. R. B., No. 50.
538
DECISIONS AND ORDERS 539
In respect to the unfair labor practices the complaint alleged in
substance
(1) That the respondent had discharged and refused to reinstate
34 named employees because of their membership in and assistance in
behalf of the Union, thereby discouraging membership in a labor
organization.,
(2) That the respondent had attempted to promote, foster, and
otherwise interfere with the formation of a labor organization of its
employees.
(3) That the respondent had publicly stated on November 6, 1936,
and has many times since then, both publicly and privately, stated that
it Will not bargain with any labor organization.
(4) That the respondent by these and other enumerated acts and
statements had interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed them in Section 7 of the Act.
The complaint and accompanying notice of hearing were duly
served upon the parties. On February 19, 1937, the respondent filed
a motion to dismiss the complaint in which it alleged that the Act
was unconstitutional. The respondent also filed an answer to the
complaint in which it admitted some of the specific acts alleged therein
but denied that it had engaged in unfair labor practices.
Pursuant to notice a hearing was held at Portland, Oregon, on
March 17, 18, 19, 22, 23, and 24, 1937, before Towne J. Nylander, the
Trial Examiner duly designated by the Board.2 The Board, the
respondent, and the Union were represented by counsel and partici-
pated in the hearing. Full opportunity to be heard, to examine and
cross-examine witnesses, and to produce evidence bearing upon the
issues was afforded to all parties. During the course of the hearing,
on the basis of three supplementary charges which had been filed by
the charging parties, the complaint was amended by including therein
the names of 18 additional employees whom it was alleged the respond-
ent had discharged and refused to reinstate because of their member-
ship in and assistance in behalf of the Union.3 The respondent's
motion that its answer to the original complaint be permitted to serve
as an answer to the amended complaint was granted.
1 Truman B . Boren, Lloyd Haggblom , Marion Lewis , Neil McLeod , Ray McLaughlin,
James K. Navarra , Edward A . Pohl, James Vanderhoof , Jr., William Keller, Adolph S.
Peterson , William Watson , J. A Herne, Jr ., Glenn Bolich , Donald Lind , Mary Lazuck,
Minnie Landsberg, Arthur Morey, Melvin Anderson, Floyd Anson, Dale Fields, Fred Ga-
dotti, Ray Haaga , Terrence Harding, Reuben Litzenberger , Wayne W. Markkanen , Kenneth
W. Martig , Howard Schippers , John Schleining , Leonard Signett , George Stanich, Riley
Sanders , Howard E Pitzer , William Shook, and Erven Klooster. '
2 The hearing , originally scheduled for February 15, 1937, had been twice postponed.
3 Paula Al. Hill, Mac E. MacGregor , Conrad W. Yost, Anthony C. Salta , Ray J . Hoffman,
Ronald D Barrie , Roy Henrickson , Kenneth Smith , Robert W. Strudgeon , William Stubbs,
Inga Thompson , Noble S . Powell, Vincent W. Stachniewicz , Harold L . Arthur, Dick Nemyre,
Horton P. Bacon , Louis Straub , and Edward Struznick.
540 NATIONAL LABO1t RELATIONS BOARD
During the course of the hearing, exceptions were taken by the
parties to various rulings of the Trial Examiner on motions and on
objections to the admission of evidence. At the conclusion of the-
hearing the respondent renewed, the motion to dismiss the complaint
which it had filed prior to the hearing for the reasons stated therein,
moved to strike the testimony of all the employees named in the com-
plaint who had testified except the three who had signed the charge
on the ground that they were not parties to the proceeding, and moved
to strike the evidence relating to all the employees named in the com-
plaint for stated constitutional reasons and on the ground that by
signing individual contracts of employment terminable at will they
had waived their rights Linder the Act. These motions were denied by
the Trial Examiner. The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial errors were committed. All
rulings of the Trial Examiner are hereby affirmed.
Following the hearing, by a stipulation entered into between the
parties, the record was reopened to permit the admission into evidence
of certain documents concerning the business of the respondent"'and
the distribution of retail sales in the United States. The stipulation
was subject to an objection on the part of the respondent that such
documents are irrelevant, immaterial, and incompetent. The objec-
tion is hereby overruled.
On May 4, 1937, the Trial Examiner filed his Intermediate Report.
He found that the respondent had discharged 51 employees because
of their membership in the Union, and that it had interfered with,
restrained, and coerced its employees in their exercise of the rights
guaranteed in the Act. He found further that by virtue of such acts
the respondent had engaged in unfair labor practices within the mean-
ing of Section 8 (1) and (3) of the Act. He recommended that the
respondent cease and desist from such unfair labor practices, reinstate
41 of such employees with back pay from the date of their discharge
to the date of their reinstatement, and reinstate ten other employees-
with back pay from February 1, 1937, to the date of their reinstate-
ment. The Trial Examiner found that Adolph Peterson, one of the-
employees named in the complaint, had not been discharged because!
of his membership in or activities in behalf of the Union and recom-
mended the dismissal of the complaint with respect to Peterson. Re•
also recommended the dismissal of the complaint with respect to the,
alleged violations of Section 8 (2) and (5) of the Act concerning,
which no evidence had been introduced at the hearing.
The respondent thereafter filed exceptions to the Intermediate Re-
port and to the record in the proceeding. Briefs have been filed by
both the respondent and the Union. On July 5, 1938, after notice to
the parties, a hearing for the purpose of oral argument was held
before the Board, in which the respondent and the Union participated.
DECISIONS AND ORDERS 541
We have reviewed the respondent's exceptions and save as consistent
with the findings, conclusions, and order, hereinafter set forth, find
them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT -
1. THE BUSINESS OF THE RESPONDENT
Montgomery Ward & Company, Incorporated, is an Illinois corpo-
ration, having its principal executive offices in Chicago, Illinois. It
is engaged in the distribution of merchandise through the media of
mail-order houses and retail stores. In connection with such distribu-
tion, it owns, operates, or maintains nine mail-order houses, four mail-
order warehouses, 52 order offices, and 540 retail stores scattered
throughout the United States.
About 20,000,000 customers scattered throughout the United States
and many foreign countries are served, by the respondent. The re-
spondent's net sales for the fiscal year ending January 31, 1936,
amounted to $293,042,357.
The Portland, Oregon, plant of the respondent with which this
proceeding is concerned consists of a mail-order house, herein called
the House, and a retail store, herein called the Store. Virtually all of
the merchandise distributed by the Portland House and Store is
shipped into Portland from points outside the State of Oregon. Cal-
culated on an average of 30,000 pounds per car, approximately 230
carloads of merchandise per month, during November and December
1936, were received at the Portland House.
The House acts as a distributing agency to approximately 500,000
mail-order customers located in the "Portland Mail Order House
Territory," consisting of the States of Oregon and Washington, the
western half of Montana, all but a small portion of Idaho, and the
Territory of Alaska. It also serves as a warehousing and distribut-
ing agency for the various retail stores operated by the respondent in
its retail "Region No. 5," consisting of the States of Montana, Idaho,
Washington, Oregon, and Arizona. About 60 per cent of the cus-
tomers served through the mail-order department live outside the
State of Oregon and 31 of the 45 retail stores in Region No. 5 are
located in other States.
Between 2,000 and 2,100 workers were employed in the Portland
House in December 1936. The yearly average is between 1,200 and
1,400. The cost value of the merchandise handled by the House in
the year ending January 31, 1937, was $12,479,398.
The Portland Store, though located in the same building as the
House, is operated as a separate and distinct unit. It is under the
direction of a retail manager whose immediate superior is located in
542 NATIONAL LABOR RELATIONS BOARD
Oakland, California, as distinguished from the House whose manager
is under the jurisdiction of the mail-order superintendent in Chicago.
The bulk of the merchandise sold by the Store is received from points
outside the State of Oregon. More than 99 per cent of its sales are
.made within the State.
In its oral argument before the Board, counsel for the respondent
stated that it was not questioning the jurisdiction of the Board over
either its House or Store.
II. THE ORGANIZATION INVOLVED
Weighers, Warehousemen, & Cereal Workers' Local 38-123 of the
International Longshoremen's Association is a labor organization af-
filiated with the American Federation of Labor. It admits to mem-
'bership employees of the respondent's Portland mail-order house and
fetail store.
III. THE UNFAIR LABOR PRACTICES
A. Intimidation and coercion
About November 1, 1936, the Union commenced an organization
drive among the employees of the respondent's Portland House and
Store. The drive met with immediate success and within a few days
a large number of the workers became members. On November 6,
the Union held a mass meeting which was attended by several hundred
of the respondent's employees.
The respondent, considerably alarmed over the situation, took im-
mediate steps to combat the union drive. Norman K. Patton, its
Portland House manager, called a meeting of the employees and read
to them a statement of the respondent's personnel policy. This state-
ment, obviously designed to influence the workers against joining the
Union, reads in part as follows :
We recognize the rights of our employees to join or refrain
from joining any organization as they see fit. We sincerely be-
lieve that there is no advantage to you in joining any outside or-
ganization and it represents an unwise expense to you.
It is our long established policy to enter into no business agree-
ment with any outside organization in view of our policy of fair
-dealing and open frank discussions with our own people. It is
not believed there is anything whatever to be gained by such a
contract nor is there any legal requirements for it.
We will not permit any organization whatever to dictate our
wage rate, the right of hiring or dismissal, nor any of our per-
sonnel policies.
The meeting proved unsuccessful, however, and many of the union
members began wearing their union buttons within the plant. On
DECISIONS AND ORDERS 543:
November 9, 1936, the respondent, attempting to practically demon-
strate its statement that the workers would gain no advantage through.
joining the Union, announced a blanket wage increase retroactive to^
November 6. Pursuant to instructions received in a teletype message
from C. W. Harris, the respondent's vice president in Chicago, indi-
vidual announcements of their raises were immediately distributed:
to the employees.
On November 10, 1936, J. D. Bullock, the assistant mail-order oper-
ating manager of the respondent, arrived in Portland to take charge-
of the respondent's campaign against the Union.4 After acquainting,
himself with the Union's position in the plant through conferences-
with Patton and various department heads, Bullock, on November 11,
addressed the House employees in 16 groups and, on the following day,.
the Store employees in three groups. His address consisted in the,
main of statements designed to influence the workers against joining.
the, Union. It leads in part, as follows :
Yesterday and today, as I have gone through the House and,
Store I have had a mixed feeling of pleasure and sorrow. Pleas-
ure to be back with you, and sorrow occasioned by the many
ugly rumors that have reached me.
Among these rumors are the following. I heard it rumored
that organizers of some outside labor organization had made
broad promises of increases in pay, shorter hours and improved,
working conditions to many of our employees and had inter--
ested them in joining this outside labor organization. I heard;
the rumor that a number of our employees felt they had more to.
gain by following the leaders-of this outside organization than,
the supervisory forces of this House and Store.
I heard the rumor that organizers of this outside labor union,
have promised a union shop or closed shop, hiring hall or prefer-
ential hiring to employees. I have explained the Company's
personnel policy on the matter of the closed shop, or hiring hall,,
or preferential hiring. Let me repeat that while any employee
may belong or refrain from belonging to a union, we will not, as
a Company, take the position that all employees must belong to
a Union.
Among the many rumors which reached me, the most ugly
one was that a strike was being planned in this House and Store.
In regard to that eventuality, let me say this to you, if a part
or all of the employees of the Portland House, and Retail Store
go on a strike of any nature or a walk-out or form a picket line
Bullock bad previously served as manager of the Portland House from February 1933
to January 1936
a
544 NATIONAL LABOR RELATIONS BOARD
around this building, those employees by their action will close
the Portland Mail Order House and Retail Store indefinitely.
My reason for this statement is that neither I nor anyone else
will ask any employee to come to his or her job through a picket
line and incur the risk of possible violence.
Currently the Portland Mail Order House is doing about 7%
of the total Mail Order volume of this Company and I believe
you will agree with me that the U. S. Mails will continue to
move and that the other Houses, doing 93% of our Mail Order
Business will be able to handle the approximate 7% clone by
this House.
Please understand that we want no trouble and will do all in
our power to keep from having trouble. Your recent pay in-
creases, effective November 6, are proof of the fact that Wards
does pay equal to or better than the majority of other com-
panies for the same or similar types of work . As tb ' promotions
from within the Company , there have been more than 100 in the
Portland Mail Order House since January 1, 1936. As to wages
and hours we have no quarrel but we never have operated and
do not intend to operate under a Union shop , closed shop or
preferential hiring, or hiring hall plan.
There will be no lockout but if the conditions referred to before
is set up by a part of the employees, I have told you what will
happen. For the good of all concerned I sincerely hope that
such a condition will never occur.
Following, the above speech word was passed around to the em-
ployees that Bullock was available in his office to employees who wished
to see him. Also certain employees , including some of the active union
members, were summoned to Bullock 's office. At these individual con-
ferences Ballock employed various tactics to discourage membership
in the Union. At some conferences he reasoned with the employees
and attempted to persuade them that they would be better off if they
relied en the company rather than on the Union, while at other con-
ferences by attacks on the Union and its leaders he again emphasized
the respondent 's antagonism to the organization.
On November 24 and December 7, Bullock again addressed the
employees . On the former occasion he answered a series - of questions
which he stated had been asked of him_ during the preceding weeks.
In his answers Bullock stated among other things that the Union
hoped to obtain a closed-shop agreement with the respondent but that
the respondent would not agree to a closed shop ; 5 and that "the rep-
resentatives of Montgomery Ward & Co. have always been willing and
anxious to talk with any employee and that the employees in the past
5 The Union had not at this time made any demands upon the respondent.
O
DECTSIG N S AND ORDERS 545
have never ' found it necessary or desirable to form a union to receive
just and fair consideration from Montgomery Ward &. Co." He also
stated that plans had been made to handle the. Portland Mail Order
Business at the respondent 's otllel_"Houses in the event a part or all the
employees of the Portland House went on strike and -formed a picket.
line around the building . Bullock then added, "It may interest you
to know that the-Portland House business represents about 7% of the
total Mail Order business and I believe you will agree that the other
Houses doing about 93 % of the business should be able tp absorb and
handle the 7% represented by the Portland House."
In opening the meeting of December 7, Bullock explained to the
employees that the meeting had been called to inform them "of what
has happened up to now and of what may happen as a result of the
activities of the organizers of the Weighers , Warehousemen , and Cereal
Worker's Union, Local 38-123, affiliated with the International Long-
shoremen 's Association ." At this meeting he called the employees'
attention to the following question which had been asked of him by
Harry L. Gross, the uniol,'s attorney , "If the warehousing union,
through an election held as provided in the National Labor Relations
Act proved to the satisfaction of Montgomery Ward & Co. that 51%
of the eligible employees had chosen the Warehousemen 's Union as
their representative for collective bargaining purposes , would Mont-
gomery Ward & Co. at that time be willing to discuss ,and negotiate
with representatives of the Union toward the end that some form of
written agreement between the Union and Montgomery Ward & Co.
would result ?" Bullock's reply was, "When and if the Warehouse-
men's Union , through an election held in compliance with the National
Labor Relations Act, is able to prove that 51% of all employees of the
Portland Mail Order House have chosen the Warehousemen 's Union
to represent them in dealing with representatives of their employer,
Montgomery Ward & Co., representatives of the Company willing
to eceive and give consideration to the list of demands in the same
manner as they would receive and give consideration to any individual
or group of employees." 6 Bullock also stated at the meeting of'De-
cember 7 that following the employees' meetings held in the plant,? he
In derstood'that many employees decided that they had more to gain
by working with and following leaders within the House and Store
than persons outside the plant. Accordingly many who had made
application or joined the Union dropped out of it.
Although the Union had not considered or discussed plans for a
strike at any of its meetings, Bullock, in the above speeches , constantly
referred to "ugly rumors" which he had heard concerning a strike at
the respondent 's plant: He threatened to close down the plant if a'
e Italics supplied -
The term "plant" is used herein to refer to both the House and Store.
546 NATIONAL LABOR RELATIONS BOARD
strike occurred and handle the Portland business through other mail-
order houses of the respondent.
The respondent, while pursuing the anti-union tactics described
above, was being kept informed of every move of the Union. In Sep-
tember 1936 it engaged the services of the Burns Detective Agency to
investigate some friction which had arisen between the elevator oper-
ators and other employees of the House. George H. Fleming, the
Portland manager of the Burns Agency, testified that one operative
was assigned to the respondent's plant at that time. However, after
the union drive got under way, the number was gradually increased
until some 10 or 12 labor spies were employed in the plant. The Burns
operatives were assigned to regular jobs within the respondent's plant
where they were in a position to spy on the activities of, their fellow
employees. Some of them joined the Union, spoke at union meetings
and even wormed their way into meetings of the union's executive
committee. Bullock admitted that lie had been receiving regular re-
ports of the names of the workers attending union meetings and the
number of persons present at such meetings.
As result of the above activities and of the systematic discharge
of union members described in Section III, B, infra, union organiza-
tion among the respondent's employees was effectually crushed.
'Bullock, his job at Portland "finished," was replaced by another House
manager late in January 1937.
The respondent, by means of all the activities set forth above; has
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
B. The discharges
Between December 22 and December 24, 1936, the respondent dis-
charged a large number of employees from its Portland House and
Store. The complaint, as amended, alleges and the answer denies that
52 of these employees were discharged because of their membership in
or activities in behalf of the Union.
The personnel records of the 52 employees named in the complaint
were introduced into evidence at the hearing. Also introduced into
evidence were lists, termed personnel survey sheets, which had been
prepared by the respondent shortly before the actual discharges took
place, showing the workers scheduled to be retained and released in
several of the departments. We will first take up by departments the
cases of the employees discharged from departments for which such
personnel survey sheets are available.
Freight Elevator Department.-Twelve persons were employed in
the freight elevator department at the Portland House just prior to
the discharges of December 1936. Between December 22 and Decem-
ber 24, eight of the twelve were discharged. It is interesting to note
DECISIONS AND ORDERS 547'
that the eight employees selected by the respondent- to be released
from the department were all members of the Union, while three of-
the four retained were not union members. J. A. Meyers, the only-
union member who was not discharged, confessed at the hearing that
he was actually an operative of the Burns Detective Agency. Meyers.
admitted that he had joined the Union immediately upon his employ-
ment at the House in November 1936 and had regularly attended the.
meetings of the Union and its executive committee. He testified that
he had made regular reports to the Burns Agency concerning the-
names and number of persons attending the union meetings.
Elmer R. Timm and Donald E. McEwan, two of the eight workers.
discharged from the freight elevator department, dropped out of the-
Union immediately- thereafter. They were reinstated in the respond-
ent's employ within a short time. Although four other persons were.
added to the staff of the department between December 24 and the
date of the hearing, Dale Fields, Howard Schippers, James K. Na-
varra, Wayne W. Markkanen, Louis Straub, and James Vanderhoof,.
the other six workers who had been discharged were not rehired.
Two,of them, Louis Straub and James Vanderhoof, testified that their
work had never been criticised.
Receiving Departmnent. 'thirty-four persons were employed in the-
respondent's receiving department prior to the lay-offs of December
1936. Between December 22 and December 24, 11 of the 34 were dis-
charged. While only 9 of the 23 workers retained in the department.
were members of the Union, all 11 of those discharged were uniowu
members. None of the union men who had been laid off were rein-
stated between December 24 and the date of the hearing although 10
new persons were added to the department during that time. -
Neil McLeod, Reuben Litzenberger, and John Schleining, three of
the workers discharged from the receiving department, testified at
the hearing. McLeod, an employee who first started working for the.
respondent on August 11, 1934, had received' his last previous lay-off
in the spring of 1935. During a conversation with Bullock held about,
November 21, he was informed that his record was a very good one.
During this same' conversation, Bullock made a point of telling
McLeod that the raises of November 6 had not been due to' the Union's,
activities.
Reuben Litzenberger, one of the active union members, began work-
ing for the respondent in July 1935. With the exception of a 13-day-
lay-off in December 1935, his employment was continuous from Au-
gust 3, 1935, until his discharge on December 24, 1936. During No-
vember 1936 Litzenberger was questioned concerning the Union on
several different occasions by one of his supervisors, a man named
Iunker. About this same time Fred Cane, another supervisor, asked
him how he "had happened to have gotten on the wrong side of the;
134068-39-vo1 ix--36
,548 NATIONAL LAIIOR RELATIONS BOARD
fence" and, when Litzenberger attempted to defend the Union, Cane
warned him, "Well, you had better think it over. It will probably
take some mighty deep thinking."
John Schleining was employed by the respondent from September
')1 until December 24, 1936. During this period his work was never
criticized. On November 16 Schleining was summoned to Bullock's
office where the latter rectified a mistake which had been made in the
wage increase granted him on November 6. During their conference
Bullock criticized the Union and stated to Schleining, "Personally,
this $2.50 initiation fee and this monthly due that you pay into the
Union, with that money I could get-myself a good bottle of whiskey
and a nice girl and go out to a dance and have a hell of a good time."
Lloyd Haggblom, -Riley Sanders, Melvin Anderson, Fred Gadotti,
Ray McLaughlin, Howard E. Pitzer, and Floyd Anson, the other
seven persons named in the complaint who were discharged from the
receiving department, did not testify at the hearing.
Shipping Department.-Seven of the 17 employees of the shipping
department were discharged between December 22 and December 24,
1936. Although only 5 of the •10 workers retained were union mem-
bers, 6 of the 7 discharged from the department -,N ere members of the
Union. Two workers were added to the staff- of the shipping depart-
ment between December 24 and the date of the hearing. One of them'
was J. A. Meyers, the Burns detective, who was transferred to the
shipping department from the freight elevator department imme-
diately after the dismissal of the union members from the latter
department.
Edwin -Stri znick, Kenneth Smith, Donald Lind, and Harold L.
Arthur, four of the union workers discharged from the shipping
department, were named in the complaint.
Warehouse No. 3.-Three of the six workers employed in Ware-
house No. 3 were discharged between' December 22 and December 24,
1936. Two of the three, Truman B. Boren and George Stanich, were
members of the Union. Of the three persons retained in the depart-
ment, one was a member of the Union.
It is clear from the record that in the four departments discussed
above the respondent seized the opportunity offered by the arrival
of its seasonal lay-off period to discharge the union members in its
employ. The evidence reveals that while the respondent was receiving
from labor spies, at least one of whom, high in union circles, was sta-
tioned in one of these departments, daily reports concerning the union
activities of its workers,' 27 of the 29 persons dismissed from such de-
partments were members of the Union. On the other hand only 16
of the 40 employees retained were union members.
The respondent did not in its Portland House follow a system of
seniority in making its seasonal lay-offs. Neil McLeod, one of the
DECISIONS AND dRDERS 549
union workers discharged from the receiving department, was senior
in service to 19 of the 23 men retained in such department, while
Reuben Litzenberger, another of the union members discharged from
the receiving department, had seniority over 13 of those retained. In
the freight elevator department, the six union members named in
the complaint had seniority over two of the men retained, and in the
shipping department, the four workers named in the complaint had
seniority, over three of those kept on. .
The swift growth of the Union in Warehouse No. 3 and in the
freight elevator, receiving and shipping departments; the respond-
'ent's knowledge, through its labor spies, of this growth and of the
union activities of its employees; the open campaign waged by the
respondent to crush the Union; and the simultaneous dismissal of
the great mass of union members from such departments lead in-
evitably to the conclusion that at least in these four departments the
seasonal lay-offs of December 1936 were used by the respondent as an
excuse for ridding its House of union members and thus crushing
the union drive among its employees.
Furthermore, the respondent did not introduce any evidence' prov-
ing that it had any reason, other than the policy of discharging union
workers followed in the four departments described, above, to dis-
miss the particular employees named in the complaint who had been
discharged from such departments. We have no basis, therefore,
upon which to find that any of such employees would have been dis-
charged during the. seasonal lay-off period even if the respondent had
not engaged in its anti-union tactics.
We 'find that Dale Fields, Howard Schippers, James K. Navarra,
Wayne W. Markkanen, Louis Straub, James Vanderhoof, Neil Mc-
Leod, Reuben Litzenberger, John Schleining, Lloyd Haggblom, Riley
Sanders, Melvin Anderson, Fred Gadotti, Ray_McLanghlin, Howard
E. Pitzer, Floyd Anson, Edwin Struzniak, Kenneth Smith, Donald
Lind, Harold L. Arthur, Truman B. Boren, and George Stanich were
discharged because of their membership in and activities in behalf
of the Union.
Packing and Billing and Eighth Floor Departments.-Two of the
union members named. in the complaint, Mary Lazuck and Minnie
Landsberg, were discharged from the packing and billing depart-
ment on December 22, 1936. Three others, William Shook, Malcolm
MacGregor, and Inga Thompson, were .dismissed from the eighth
floor at approximately. the same time. .The personnel survey sheets
for these departments indicate that only seven of the 95 persons re-
leased from the packing and billing department and only five of
the 25 laid off on the eighth floor were members of the Union. No
evidence was introduced concerning the union affiliation of the work-
ers retained on the eighth floor, but 19 of the 55 retained in the
550 NATIONAL LABOR RELATIONS BOARD
packing and billing department were union members. All 19 resigned
from the Union immediately after the December lay-offs, however.
The Board did not introduce any evidence at the hearing to ex-
plain the difference between the percentage of union members dis-
charged in these two departments and those discharged in the other
four departments discussed above. We are therefore unable to deter-
mine whether the small number of union members discharged was-
due to the fact that the respondent had knowledge that the 19 union
members retained in the packing 'and billing department intended
resigning from the Union and that the union members discharged
were the only other ones in the two departments, or whether it was
because the respondent limited its policy of discharging union mem-
bers to those departments which were strongly organized. Upon the
record in the case, we cannot find that Mary Lazuck, Minnie Lands-
berg, William Shook, Malcolm MacGregor, and Inga Thompson were
discharged because of their membership in or activities in behalf of
the Union.
Arthur Morey.-Arthur Morey commenced working for the re-
spondent on February 5, 1936, as a radio technician at 35 cents an
hour. On May 2 he was raised to 421/2 cents an hour and on June 6
to 45 cents. On August 7 Morey was placed in charge of the radio,
shop and raised to 50 cents an hour. He was given added duties and
raised to 60 cents an hour on October 30. On November 6 he received
another raise, this time to 70 cents an hour. Despite the very satis-
factory work indicated by his rapid advance and numerous salary
increases, Morey was discharged on December 23, 1936.
Morey was one of the Union's most active members. As a member
of -its negotiating committee he. had helped represent the Union at
conferences concerning charges of intimidation and coercion held
with Bullock and the respondent's attorneys about November 20 and
23, 1936, before the Regional Director for the Nineteenth Region.
Following these two meetings, Iunker called upon Morey stating
that he desired to hear the union's side. Iunker on that occasion
told Morey that he knew of the latter's musical talents and choir
activities and that he could not understand how Morey could have any
interest in this type of union.
Following this conversation Iunker took Morey to see Bullock,
who devoted considerable time in explaining that the wage increases
of November 6 were the result of the respondent's regular wage
policy. There was no mention of the Union at this meeting. How-
ever, Morey was again called in to see Bullock a few days later, at
which time Bullock sharply criticized the Union and its officials.
He informed Morey that the latter could obtain information at the
sheriff's office and the police station "concerning members of the
organization or those connected directly with the organization."
DECISIONS AND ORDERS 551
Bullock added-that lie-did not--see what power the Union could
have in an open shop where- non-union workers received the same
wages as union workers.
When Morey was discharged on December 23, Gardner, the shop
foreman, informed him that lie was being replaced as head of the
,radio shop by Tom Ely, an older employee from the service auditing
unit. When Morey protested to Bullock, the latter denied that he
was being discharged for union activities and stated that the respond.
ent was cutting down its force in Ely's section and it,was necessary
to find room for Ely. Bullock promised Morey to reinstate him as
soon as an opening occurred.
The respondent, in its answer, denied that Morey had been dis-
charged and stated that it intended to reinstate him as soon as work
became available. The respondent's contention is not supported by
the evidence, however. A vacancy which occurred in the shop
shortly after Morey's dismissal was filled by Gus Hanson, an em-
ployee of Sears Roebuck & Company, who had voluntarily left the
respondent's employ several months before. Also, Morey's release
card was checked "discharged" and not "laid off."' The respondent's
.actions, therefore, belie its protestations concerning Morey, and it
seems obvious that Ely was appointed to Morey's job merely tem-
porarily until a new man, Hanson, could be found to fill the position.
Upon all the evidence in the case, we find that Arthur Morey
was discharged because of his membership in or activities in behalf
of the Union.
Other discharges.-Twenty-four other persons named in the com-
plaint were discharged by the respondent from departments for which
personnel survey sheets are not available. There is no evidence in
the record, therefore, from which we can determine whether the
respondent, in laying off employees from such departments, followed
the policy adopted in Warehouse No. 3 and in the freight elevator,
receiving, and shipping departments of retaining non-union workers
and releasing members of the Union.
The personnel records of these 24 workers were placed in evidence
at the hearing. The records reveal their length of service and do
give us some indication of whether their work had in the past been
considered satisfactory by the respondent. We do not have any
information concerning the total number of employees retained and
released in each department, however. Furthermore, since the per-
sonnel records of the other workers employed in the same depart-
ments are not in evidence, we are unable to determine whether the
basis used in selecting the individuals named in the complaint for
dismissal was different from that used in considering the other em-
ployees of such departments.
552 NATIONAL LABOR RELATIONS BOARD
All 24 of the persons named in the complaint are members of the
Union. The record, however, does not contain any evidence indi-
cating the extent of their union activities. Only one of them; R. W.
Strudgeon, testified at the hearing, and his testimony merely reveals
that his work had never been criticized and that his supervisor, a
man, named Snider, had stated to him at the time of his discharge,
"I am sorry to have to do this, but this time comes around once a
year."
Upoil the record, we cannot find that R. W. Strudgeon, Leonard
Signatt, Vincent Stachniewicz, Marion Lewis, Edward Pohl, Ray
Haaga, Erven Kloostra, William R. Watson, Anthony C. Salta, Noble
S. Powell, Glenn Bolick, Dick Nemyre, Terrence Harding, William
Keller, Kenneth Martig, William Stubbs, Mrs. Paula Hill, Horton
Bacon, Roy Henrickson, Ray Hoffman, James A. Henie, Ronald
Barrie, C. W. Yost, and Adolph Peterson were discharged because
of their membership in or activities in behalf of the Union.
The respondent, by discharging Dale Fields, Howard Schippers,
James K. Navarra, Wayne W. Markkanen, Louis Straub, James Van-
derhoof, Neil McLeod, Reuben Litzenberger, John Schleining, Lloyd
Haggblom, Riley Sanders, Melvin Anderson, Fred Gaclotti, Ray Mc-
Laughlin, Howard E. Pitzer, Floyd Anson, Edwin Struznick, Ken-
neth Smith, Donald Lind, Harold L. Arthur, Truman B. Boren,
George Stanich, and Arthur Morey, because of their membership in
and activities in behalf of the Union, has discriminated in regard to
hire and tenure of employment and thereby discouraged membership
in a labor organization.
The respondent, by means of all of the activities described above,
has interfered with, restrained, and coerced its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
In the cases of Mary Lazuck, Minnie Landsberg, William Shook,
Malcolm MacGregor, Inga Thompson, R. W. Strudgeon, Leonard
Signett, Vincent Stachniewicz, Marion Lewis, Edward Pohl, Ray
Haaga, Erven Kloostra, William R. Watson, Anthony C. Salta, Noble
S. Powell, Glenn Bolich, Dick Nemyre, Terrence Harding, William
Keller, Kenneth Martig, William Stubbs, Mrs. Paula Hill, Horton
Bacon, Roy Henrickson, Ray Hoffman, James A. Henie, Ronald
Barrie, C. W. Yost, and Adolph Peterson the respondent has not dis-
criminated in regard to hire and tenure of employment and thereby
discouraged membership in a labor organization.
C. Other alleged unfair labor practices
No evidence was introduced at the hearing to support the allegations
of the complaint that the respondent had engaged in unfair labor
practices, within the meaning of Section 8 (2) and (5) of the Act.
DECISIONS AND ORDERS 553,
We find that the respondent has not engaged in unfair labor prac-
tices, within the meaning of Section 8 (2) and (5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the respond-
ent described in Section I above, have a close, intimate, and substan-
tial 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.
THE REMEDY
Since Dale Fields, Howard Schippers, James K. Navarra, Wayne
W. Markkanen, Louis Straub, James Vanderhoof, Neil McLeod, Reu-
ben Litzenberger, John Schleining, Lloyd Haggblom, Riley Sanders,
Melvin Anderson, Fred Gadotti, Ray McLaughlin, Howard E. Pitzer,
Floyd Anson, Edwin Struznick, Kenneth Smith, Donald Lind, Harold
L. Arthur, Truman B. Boren, George Stanich, and Arthur Morey were-
discharged as the result of unfair labor practices, we shall order their`
reinstatement to their former or substantially equivalent positions.
with back pay in the amount they have suffered by reason of their-
respective discharges by payment to each of them of a sum equal to
the amount which he normally would have earned as wages from the
date of his discharge to the date of the offer of reinstatement, less his,
net earnings 8 during said period. Such reinstatement shall be ef-
fected in the following manner : All new employees hired after Decem-
her 24, 1936, shall, if necessary to provide employment for those-
ordered to be reinstated, be dismissed. If, thereupon, by reason of a
reduction in force there is not sufficient employment immediately
available for the remaining employees, including those ordered rein-
stated, all available positions shall be distributed among such remain-
ing employees in accordance with the respondent's usual method of
reducing its force, without discrimination against any employee be-
cause of his union affiliation or activities, following a system of senior-
ity to such extent as has heretofore been applied in the conduct of the
respondent's business. Those employees remaining after such distri-
bution, for. whom no employment is immediately available, shall be
placed upon a preferential list prepared in accordance with the prin-
ciples set forth in the previous sentence, and shall thereafter in accord-
8 By "net earnings " is meant earnings less expenses such as for transportation, loom,
and board , incurred by an employee in connection with seeking work or working elsewhere
than for the respondent , which would not have been incurred but for his unlawful dis-
charge and the consequent necessity of his seeking employment elsewhere . See Matter of
Crossett Lumber Company and United Brotherhood of Carpenters and Jolnems of Amemica,
Lumber and Sawmill Workers Union , Local 2590, 8 N L . R. B 440.
=554 NATIONAL LABOR RELATI ONS BOARD
ante with such list be offered employment in their former or in
substantially equivalent positions as such employment becomes avail-
able and before new persons are hired for such work. New employees
"or new persons" as used herein does not include employees who were
-employed by the respondent up to December 24, 1936, and who were
discharged together with those employees herein ordered reinstated.
Upon the basis of the foregoing findings of fact and upon the
entire record in this proceeding, the Board makes the following :
CONCLUSIONS OF LAW
1. Weighers, Warehousemen, & Cereal Workers' Local 38-123 of
-the International Longshoremen's Association is a labor organiza-
ition, within the meaning of Section 2 (5) of the Act.
2. The respondent, by discriminating in regard to the hire and
-tenure of employment of Dale Fields, Howard Schippers, James K.
Navarra, Wayne W. Markkanen, Louis Straub, James Vanderhoof,
.Neil McLeod, Reuben Litzenberger, John Schleining, Lloyd Hagg-
,blom, Riley Sanders, Melvin Anderson, Fred Gadotti, Ray McLaugh-
lin, Howard E. Pitzer, Floyd Anson, Edwin Struznick, Kenneth
Smith, Donald Lind, Harold L. Arthur, Truman B. Boren, George
:Stanich, and Arthur Morey, thereby discouraging membership in a
labor organization, has engaged in and is engaging in unfair labor
practices, within the meaning of Section 8 (3) of the Act.
3. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7
.of the Act, has engaged in and is engaging in unfair labor practices
Within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
-affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
5. The respondent, in the discharge of Mary Lazuck, Minnie
Landsberg, William Shook, Malcolm MacGregor, Inga Thompson,
R. W. Strudgeon, Leonard Signett, Vincent Stachniewicz, Marion
Lewis, Edward Pohl; Ray Haaga, Erven Kloostra, William R. Wat-
son, Anthony C. Salta, Noble S. Powell, Glenn Bolich, Dick Nemyre,
Terrence Harding, William Keller, Kenneth Martig, William Stubbs,
Mrs. Paula Hill, Horton Bacon, Roy Henrickson, Ray Hoffman,
James A. Henie, Ronald Barrie, C. W. Yost, and Adolph Peterson
has not engaged in unfair labor practices, within the meaning of
Section 8 (3) of the Act.
6. The respondent has not engaged in unfair labor practices,
-within the meaning of Section 8 (2) and (5) of the Act.
DECISIONS AND ORDERS
ORDER
555
Upon the basis of the findings of fact and conclusions of law, and'
pursuant to Section 10 (c) of the National Labor Relations Act,.
the National Labor Relations Board hereby orders that the respond-
ent, Montgomery Ward & Company, Incorporated, and its officers,.
agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Weighers, Warehousemen, &C
Cereal Workers' Local 38-123 of the International Longshoremen's.
Association or any other labor organization of its employees by dis-
charging or refusing to reinstate any of its employees or in any
other manner discriminating in regard to their hire or tenure of
employment or any term or condition of their employment because
of their membership in or activity in behalf of any such labor-
organization ;
(b) Employing detectives to investigate the activities of its em-
ployees in behalf of Weighers, Warehousemen, & Cereal Workers'"
Local 38-123 of the International Longshoremen's Association or any
other labor organization of its employees or employing any other-
form or manner of espionage for such purposes;
(c) In any other manner interfering with, restraining, or coercing-
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted'
activities for the purposes of collective bargaining or other mutual'
aid or protection.
2. Take the following affirmative action, which the Board finds will,
effectuate the policies of the Act :
(a) Offer to Dale Fields, Howard Schippers, James K. Navarra,.
Wayne W. Markkanen, Louis Straub, James Vanderhoof, Neil Mc-
Leod, Reuben Litzenberger, John Schleining, Lloyd Haggblom, Riley
Sanders, Melvin Anderson, Fred Gadotti, Ray McLaughlin, Howard
E. Pitzer, Floyd Anson, Edwin Struznick, Kenneth Smith, Donald'
Lind, Harold L. Arthur, Truman B. Boren, George Stanich, and'
Arthur Morey immediate and full reinstatement to their former or-
substantially equivalent positions, without prejudice to their senior-
ity and other rights and privileges, in the manner set forth in the,
section entitled "Remedy" above, placing those employees for whom'
employment is not immediately available upon a preferential list in
the manner set forth in said section ;
(b) Make whole the employees named in paragraph 2 (a) above,
for any loss of pay they have suffered by reason of their discharge,
by payment to each of them, respectively, of a sum of money equal
to that which he would normally have earned as wages during the
.556 NATIONAL LABOR RELATIONS BOARD
,period from the date of his chschaige to the date of the offer of
reinstatement, less his net earnings during said period;
(c) Post immediately in conspicuous places on each floor of the
Portland House and Store, notices stating that the frespondent will
cease and desist in the manner aforesaid;
(d) Maintain such notices ford a period of at least thirty (30):
consecutive days from the date of posting;
(e) Notify the Regional Director for the Nineteenth Region in
writing within ten (10) days from the date of this Order what steps
-the respondent has taken to comply herewith .
And it is further ordered that the allegations of the complaint
that the respondent has engaged in unfair labor practices within the
meaning of Section 8 •(2) and (5) of the Act and with respect to,
Mary Lazuck, Minnie Landsberg, William Shook, Malcolm Mac-
Gregor, Inga Thompson, R. W. Strudgeon, Leonard Signett, Vincent
Stachniewicz, Marion Lewis, Edward Pohl, Ray Haaga, Erven
Kloostra, William R. Watson, Anthony C. Salta, Noble S. Powell,
Glenn Bolich, Dick. Nemyre, Terrence Harding, William Keller,
Kenneth Martig, William Stubbs, Mrs. Paula Hill, Horton Bacon,
Roy Henrickson, Ray Hoffman, James A. I3enie, Ronald Barrie, C.
W. Yost, and Adolph Peterson be, and they hereby are, dismissed.