Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

May 12, 1941

31 N.L.R.B. 786 (N.L.R.B. 1941)

In the Matter Of MONTGOMERY WARD Sz' COMPANY , INCORPORATED and
UNITED MAIL ORDER AND RETAIL EMPLOYEES OF KANSAS CITY, LOCAL
131, AFFILIATED WITH THE UNITED RETAIL AND WHOLESALE EMPLOYEES .
OF AMERICA , C. I. O.
Case No. C-217.-Decided May 10, 194.1
Jurisdiction : general merchandising, retailing, and mail order industry.
Unfair Labor Practices
In General
Employer held responsible for activities of its supervisory employees where
it failed to disavow their statements and acts and where the employees had
just cause to believe that their action and conduct were for and on behalf
of the management.
Interference, Restraint, and Coercion: making known to the employees a marked
hostility toward the organizational activity of the union and an intention to
prevent its success ; disparaging the union ; indicating that employee opposition
to the union would win its favor ; threatening to close down the mail-order
house and the retail store if the union organized the employees ; attempting
to form a company union as a means of combatting the union ; soliciting mem-
berships for the company union ; attempting to learn the identity of the em-
ployee soliciting memberships for the union.
Discrimination* discharges of five employees because of their union membership
and activity ; discriminatory delay in reinstating one employee because of her
affiliation with the union-discharges, charges of, dismissed as to three em-
ployees-held: employer's contentions of impartial policy to labor affiliation,
increase of membership in union and advancement of union members, do not
of themselves establish absence of discriminatory conduct.
Remedial Orders: reinstatement and back pay awarded discharged employees;
back pay awarded employee discriminatorily delayed reinstatement ; dis-
charged employee, whose wife is employed by respondent, ordered reinstated,
notwithstanding respondent's contention that it has a rule forbidding employ-
ment of relatives, including husband and wife.
Practice and Procedure : ruling of Trial Examiner denying employer's request
for a subpena, duces tecum of union records, affirmed; ruling of Trial Exam-
iner denying employer's motion to strike all testimony as to statements
alleged to have been made by two persons who were deceased at the time of
the hearing, affirmed.
Employer's contention that the Board had not substantially complied
with the mandate of the Court, because the complaint as amended aban-
doned certain issues at the first hearing and alleged unfair labor practices
which arose subsequent to the first hearing held `without merit since the
Court in its remand did not limit the new hearing to issues covered in the
complaint, as amended at the first hearing, but stated that such hearing
might be upon the complaint "as now amended or otherwise." Since the
31 N. L R. B., No. 134.
786
MONTGOMERY WARD'& COMPANY 787
issuance of -the first complaint as amended in effect strikes from the
complaint as amended at the first hearing the allegations in question,
there is no reason for dismissing the allegations of the complaint as
amended, at the first hearing.
Mr. Paul Nachtman, for the Board.
Mr. John A. Barr, Mr. L. E. Oliphant, Jr., Mr. Walker Smith,,
and Mr. G. V. Brown, of Chicago, Ill., for the respondent.
Mr. Robert W. Green, of Kansas City, Mo., for the Union.
Mr. Daniel J. Harrington, of counsel to the ^ Board..
SUPPLEMENTAL DECISION
AND '
SUPPLEMENTAL ORDER
, STATEMENT OF THE CASE
On January 26, 1938, the National Labor Relations Board, herein
called the Board, issued a Decision and Order in the above case,,
wherein it found that Montgomery Ward & Co., Incorporated, Chi-
cago, Illinois, herein called the respondent, had engaged and was
engaging, at its Kansas City, Missouri, plant, in unfair labor prac-
tices affecting commerce, within the meaning of Section 8 (1), (2),
and (3) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called theAct, and ordered the respondent to
cease and desist from its unfair labor practices and to take certain
affirmative action to effectuate the policies of the Act. On April 11,
1938, the respondent filed in the United States Circuit Court of
Appeals for the Eighth Circuit, herein called the Court, a petition
praying that the order of the Board be set aside. On April 3, 1939,
the Court issued an opinion and on • April 7, 1939, entered an
order setting aside the order of the Board in its entirety and
remanding the cause to the Board- for a new hearing before
another Trial Examiner to be selected by the Board. The Court
provided that "Such hearing may be upon the complaint as
now amended or otherwise." 2 On November 17, 1939, the Board
reopened the record in the case for further proceedings in conformity
with the order of the Court.
On March 13, 1940, United Mail Order and Retail Employees of
Kansas City, Local 131, affiliated with the United Retail and Whole-
sale Employees of America, C. I. 0., a party to these proceedings and
'- Matter of Montgomery Ward and Company , Incorporated, a Corporation and United
Mail Order and Retail Workers of America, 4 N. L. R. B. 1151.
2 Montgomery Ward & Company, Incorporated, v. N L. R B. (Union of Ward Employees,
Intervenor), 103 F. (2d) 147, 157 (C. C. A. 8).
44184 3--42=vol 31-51
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
formerly known as United Mail Order and Retail Workers of
America; herein called the Union, filed a third amended charge, charg-
ing that the respondent had engaged in and was engaging in unfair
labor practices, within the meaning of Section 8 (1) and (3) of the
Act. Upon the charges and amended charges filed, the Board, by the
Regional Director for the Seventeenth Region (Kansas City, Mis-
souri ) issued an amended complaint, dated March 16, 1940, against
the respondent, alleging; that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the
Act. Copies of the amended complaint, accompanied by notice of
hearing, were duly served upon the respondent, the Union, and the
Union of Ward Employees , a labor organization mentioned in the
amended complaint.3 At the hearing, mentioned below, the amended
complaint was amended in certain respects.
With respect to the unfair labor practices the amended complaint,
as amended, alleged, in substance, (1) that the respondent between
December 21, 1937, and July 9, 1938, terminated the employment of
nine named employees, six of whom had been employed in the mail-
order house division of the respondent's business 4 at Kansas City,
Missouri, and three of whom had been employed in the retail store
division of that business,5 because df their membership and activities
in behalf of the Union and because they refused to join the Union
of Ward Employees, the Union of Ward Retail Employees, or the
Independent Association of Ward Employees and at all times since
failed and refused to reinstate said employees, thereby discriminating
in regard to the hire and tenure of employment of said employees;
(2) that the respondent on December 23, 1937, terminated the employ-
lnent of Pearl Aldridge, a person employed in the above-mentioned
retail store division, and failed and refused to reinstate her until
October 2, 1938, because of her affiliation with the Union, thereby dis-
criminating in regard to the hire and tenure of employment of said
employee; (3) that the respondent since on or about March 1, 1937,
at Kansas City, Missouri , acting through its officers, agents, and em-
ployees, kept meetings of the Union and union members under sur-
3 This labor organization intervened at the first hearing, which preceded the Decision and
Order of the Board of January 26, 1938 . It did not appear at the hearing , mentioned
below, nor has it otherwise participated in these proceedings since the filing of the third
amended charge.
4 The names of these employees and the dates of their respective discharges are as
follows : Grant C. Miller, discharged December 21, 1937; Lela Simmons, discharged
December 22, 1937; Charles Guyer, discharged January 15 , 1938 ; Wilma Bell, discharged
June 15, 1938; Margaret Corum , discharged on or about June 16, 1938, and George R.
Frank , discharged June 16, 1938.
6 The names ' of these epiployees and the dates of their respective discharges are as
follows : A. L. Rothe, discharged December 24 , 1937 ; Johanna Smith, discharged May 21,
1938; 'and John brine, discharged July 9, 1938
MONTGOMERY WARD & COMPANY 789
veillance, made statements and speeches to its employees prejudicial
to and, disparaging of the Union and calculated to discourage mem-
bership in the Union, made threats to close the afore-mentioned mail-
order house and retail store divisions should the employees affiliate
with the Union, caused petitions to be circulated among its employees
in the promotion of the Union of Ward Employees and the Union
of Ward Retail Employees, labor organizations, respectively, and
demoted employees to menial positions because of their membership
and activities in the Union; and (4) that the respondent by the
foregoing and other acts, interfered with, restrained, and coerced its
employees and is so interfering with, restraining, and coercing them,
in the exercise of rights guaranteed in Section 7 of the Act.
ally the material' allegations of the amended complaint.
Pursuant to notice, a hearing was held in Kansas City, Missouri,
from April 4 to April 16, 1940, -before William B. Barton, the Trial
Examiner duly designated by the Chief Trial Examiner. The Board,
the respondent, and the Union appeared by counsel or representative,
and all participated in the hearing. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing upon the issues was afforded all parties.6 At the close of the
Board's case the respondent moved to dismiss the amended complaint,
as amended, and certain designated portions thereof for lack of juris-
diction and also on the ground that the evidence failed to show any
violation of the Act by the respondent. The Trial Examiner dis-
missed without prejudice the allegations of the amended complaint, as
amended, with respect to Margaret' Corum, but otherwise denied the
respondent's motions. At the close of the hearing the respondent re-
newed these motions. The Trial Examiner reserved ruling on them
and in his Intermediate Report, mentioned below, denied them in so
far as they were inconsistent with the findings and recommendations
made in said report. During the hearing the respondent moved to
strike all testimony pertaining to the respondent's policy with regard
to union activities or labor problems at any time or place other than
on and after March 1, 1937, at Kansas City, Missouri. The Trial
Examiner reserved. ruling on the motion and denied it in the Inter-
mediate Report. During the course of the hearing the Trial Exam-
iner made numerous rulings on other motions and on objections to
6 Early in the hearing the representative of the Union agreed to collaborate with counsel
ing the respondent's witnesses. In its exceptions , mentioned below, the Union took no
Later the representative of the Union asked for the privilege of-cross -examining the re-
spondent ' s witnesses The Trial Examiner ruled that, inasmuch as the Union had examined
the Board 's witnesses through counsel for the Board , it should do likewise in cross-examin-
ing the respondent' s witnesses In its exceptions, mentioned below, the Union took no
exception to this ruling. .
On March 27, 1940, the respondent filed its answer, denying gener-
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the admission of evidence. The Board _has reviewed the rulings of
the Trial Examiner and finds that no prejudicial errors were com-
mitted. The rulings are hereby affirmed.
On June 3, 1940, the Trial Examiner, issued his Intermediate Re-
port, copies of which were duly served upon the respondent and the
Union, wherein he found that the respondent had discriminated in
regard to the hire and tenure of employment of six of the employees
named in the amended complaint, as amended ,7 and had engaged in
and was engaging in other unfair labor practices affecting cominerce,
within the meaning of Section 8 (1) and (3) and Section 2 (6) and
(7) of the Act, and recommended that the respondent cease and desist
therefrom and take certain affirmative action to remedy the unfair
labor practices. The Trial Examiner further recommended that the
amended complaint, as amended, be dismissed in-so far as it alleged
that the respondent discriminated in regard to the hire and tenure of
,employment of the three remaining employees named therein." Ex-
ceptions to the Intermediate Report and to the record were filed by
the Union on June 27, 1940, and exceptions by the respondent on June
28, 1940. The exceptions of the Union comprise in part a brief in
support thereof. On July 18, 1940, the respondent submitted to the
Board a brief in support of its exceptions.
In its exceptions the Union excepts, among other things, to the
recommendation of the,Trial Examiner that the amended complaint,
as amended, be dismissed as to Johanna Smith. It does not except
to the recommendation of the Trial Examiner that the amended com-
plaint, as amended, be dismissed as to the two other employees.9
In its brief the respondent contended that there had not been sub-
stantial compliance by the Board with the mandate of the Court re-
manding the case to the Board for a new hearing because the amended
complaint, as amended, abandoned the issues raised at the first hearing
in that such complaint contained no allegation that the respondent had
engaged in and was engaging in unfair labor practices within the
meaning of Section 8 (2) of the Act; which was an issue at the first
hearing, and in that the allegations of the amended complaint, as
amended, contained no allegation that the respondent discriminated
in regard to the hire and tenure of employment of two persons whose
cases were in issue at the- first hearing, but instead alleged discrimina-
tion as to nine other persons whose employment had been terminated
subsequent to the first hearing. The respondent further contended
that in not dismissing the allegations of the complaint, as amended at
'The names of these employees are Charles Guyer, Grant C. Miller, George R. Frank,
Arthur L. Rothe, John Horine, and Pearl Aldridge.
8 The names of these three employees are Lela Simmons , Johanna Smith , and Wilma
Bell
9 The names of these employees are Lela Simmons and Wilma Bell.
MONTGOMERY WARD & COMPANY 791
the first hearing, the Board acted unfairly to the respondent and with
an apparent lack of good faith. We have considered this contention
and conclude that the procedure followed was proper and fair. In
its order remanding the case to the board the Court did not limit the
new hearing to issues covered in'the complaint,• as amended at the first
hearing, but stated that "such hearing may be upon the complaint as
now amended or otherwise." There is no reason to dismiss the alle-
gations of the complaint, as amended at the first hearing, since the
issuance of the amended complaint, as amended, in effect strikes from
the complaint, as amended, the allegations ,in question.
Pursuant to request therefor by the respondent and notice thereof
to all parties, a hearing was held before the Board on November 19,
1940, in Washington, D. C., for the purpose of oral argument. The
respondent appeared and presented oral argument. The Board has
considered the exceptions to the Intermediate Report and to the record,
and, save as they are consistent with the findings, conclusions, and
order set forth below, finds no merit in them.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, Montgomery Ward & Co., Incorporated, an Illinois
corporation having its principal executive offices in Chicago, Illinois,
is engaged in the business of selling and distributing clothing, dry
goods, furniture, home furnishings, hardware, plumbing, heating
equipment, farm equipment and supplies, building materials, jewelry,
musical instruments, tires, auto accessories, electrical supplies, books,
stationery, drugs, cosmetics, and sporting goods. The respondent
operates 9 mail-order houses, 4 mail order warehouses, 52 order houses,
and more than 500 retail stores located throughout the United States.
These proceedings involve persons employed by the respondent at
Kansas City, Missouri, in a mail-order house and a retail store there
operated upon different'floors of one building. Approximately 80
per cent of the merchandise sold and distributed by both the Kansas
City mail-order house and retail store is shipped to them from States
other than the State of Missouri. The mail-order house serves an
area extending into six States and makes approximately 60 per cent
of its sales to purchasers in States other than the State of Missouri. It
deals directly with customers in the six ,States and sends out twice
annually to approximately 700,000 prospective customers in those
States a general catalogue describing the merchandise it has for sale.
The retail store has approximately 12,000 customers who trade with it
on a credit basis, almost 540 of whom reside outside the State of Mis-
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
souri. The goods piirchased by these customers are shipped from the
retail store to their various places of residence outside the State by
mail, truck, express, and freight.
The merchandising policy of both the mail-order house and the retail
store is directed by officials of the respondent in Chicago. Some of the
goods sold by the respondent in the snail-order house and the retail
store is bought through buyers in central buying offices of the re-
spondent in Chicago and New York City. The respondent owns fac-
tories at Springfield and Chicago Heights, Illinois, Madison, Wiscon-
sin, and Baltimore, Maryland, the products of which are sold in the
mail-order houses and retail stores of the respondent, both at Kansas
City, Missouri, and elsewhere.
The mail-order house and the retail store coordinate their activities
by selling goods for one another. Merchandise on hand in the mail-
order house for which there is' no ready or adequate market is trans-
ferred to the retail store for disposition over the counter to local
buyers. Whenever merchandise requested by a customer in the retail
store is not on hand, but may be procured from stock in the mail-
order house, the customer is invited to place an immediate order for
the merchandise with the mail=order house for immediate delivery in
the retail store. During part of 1939 clerks in the retail store were
paid a bonus by the respondent for orders obtained in this fashion.
The mail-order house and the retail store on occasion use the same
trucking facility for deliveries of goods. Some of the delivery, trucks
used bear the name of both the mail-order house and the retail store.
The retail store uses the facilities of the mail-opening division of the
mail-order house in connection with receipt of its mail.
The mail-order house and the retail store each has a personnel
manager who is responsible to a personnel chief, a vice president of
the respondent in Chicago. Occasionally an employee, with the con-
sent of this official; is transferred from one to the other. Employees
in both the mail-order house and the retail store are examined and at
tines treated by the same medical department, which is located in the
mail-order house.
There are approximately 1,500 employees in the mail-order- house
and about 270 employees in the retail store.
There is such an interdependence between the functions and labor
relations of the mail-order house and the retail store that they con-
stitute substantially a single enterprise. The sales and distribution
of each constitute trade and commerce among the several States and
,a stoppage of the operations of either because of a strike or other
form of industrial strife or unrest necessarily would result in a cessa-
tion of the movement of goods in, interstate commerce.
MONTGOMERY WARD & COMPANY
H. THE ORGANIZATION INVOLVED
-793
United Mail Order and Retail Employees of Kansas City, Local
131, affiliated with the United Retail and Wholesale Employees of
America, C. I. 0., is a labor organization affiliated with the Congress
of Industrial Organizations, herein called the C. I. O. It admits to
membership employees of both the mail-order house and the retail
store of the respondent at Kansas City, Missouri.
HI. THE UNFAIR LABOR PRACTICES '
i
A. Interference, restraint , and coercion
During April and May 1937 the Union began organizing employees
of both the mail-order house and the retail store at Kansas City
and enrolled as members a number of such employees. The respond-
ent, through its managerial and other supervisory employees, in vari-
ous ways sought to defeat this self-organization. It made known to
the employees a marked hostility toward the movement and an in-
tention to prevent its success. It disparaged the Union, indicated
that employee opposition to the Union would win its favor, and
threatened to close down the Kansas City business if the Union or-
ganized the mail-order house and retail store employees. House
Engineer A. F. Thompson, in charge of maintenance in the mail-order
house, told Grant C. Miller, an employee in the maintenance `depart-
ment, that the respondent "wasn't going to have an outside union
coming in if he could keep it out." To Charles Guyer, another em-
ployee, Thompson adverted critically ' to the Union as one "governed
by headquarters in some distant city, not knowing anything of our
troubles, . . . just out after . . . [the employees] money and gave
. .. [the employees] nothing in return." He also suggested to this
employee that if he "would be a worker for the company union [the
unaffiliated organization mentioned below] the company would appre-
ciate it." Harold Hickey, manager of the auto accessories depart-
ment of the retail store, told John Horine, an employee, "The C. I. O.
[the Union] is getting in here. That has got to be stopped." Hickey
told Horine, further, that if the Union "gets in Montgomery Wards,
they will close their plants down." Bennett Stephenson, a depart-
ment head in the retail store, similarly stated to employees at a
meeting, mentioned below, that, if the Union succeeded,- the respond-
ent "would close their doors and would not operate under the C. I. O.
or any other national organization." At this meeting Nellie Boone,
the head timekeeper in the retail store, informed the employees that
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
the, respondent "would certainly close down their plant rather than
operate it if the C. I. O. was in the company." 10
About the same time the respondent, through these managerial
and supervisory employees, sought to bring about the formation of a
so-called company union, that is, one limited in membership to em-
ployees of the respondent and unaffiliated with any national or other
labor organization, as a means of combatting the Union." The re-
spondent felt, as Thompson stated to Guyer, that if the employees
were to have a union it should be a union "of . . . [their] own," viz.,
a company union. On or about May 10, 1937, during working hours,
employees were solicited by representatives of the management to
sign cards containing an application for membership in a company
union. For purposes of such activity the office of Boone, the head
timekeeper of the retail store, was utilized. - Hickey directed Horine
to go to that office and "sign up in the company union." Gibson;;, the
assistant manager in the retail store, told Horine to enlist the support
of other employees in such a project "to keep the C. I. O. out." As
employees signed these cards in the head timekeeper's office, the man-
ager of the retail store was present and examined the signed cards.
Later, during the same day that these events occurred, a meeting of
certain employees-took place in a tavern near the respondent's estab-
lishment. Among those present were various managerial and super-
visory employees, including the following department heads : Stephen-
son, Boone, Margaret Baker, and one Carlstadt. These individuals
stated that the respondent desired to have formed a company union,
and threatened that the Kansas City enterprise would shut down if
the Union "got in." Within a few days thereafter Hickey requested
Horine to ascertain and inform him of the identity 'of the employee
who was soliciting memberships for the Union, and stated that the
respondent proposed to discharge said individual.
The respondent contends that it is not responsible for the action
or conduct of its managerial or supervisory employees," either that
set forth above or hereinafter. - Those persons directed and controlled
10 None of the above statements was denied and our findings are based upon the
uncontradicted testimony of Miller , Guyer, and Horine
' The evidence does not show how successful the attempt by the respondent to estab-
lish a company union was . In any. event the amended complaint , as amended , did not
allege a violation of Section 8 (2) of the Act . However, even If the attempt was abortive
it constituted interference , restraint , and coercion in the exercise of rights guaranteed
employees by the Act , N. L. R. B . v. J. Freezer of Son, Inc, 95 F. (2d) 840 ( C. C A. 4).
' These employees are as follows . Sherrill, personnel director of the mail -order house ;
Norton, regional manager of the respondent 's retail organization in the Kansas City
territory ; Dodge and Williams , retail store managers ; Thompson, house engineer in charge
of maintenance in the mail -order house ; Gibson , assistant manager of the retail store ;
Boone, head 'timekeeper in the retail store ; and Hickey , Stephenson , Baker , Carlstadt,
Waltz, Elliott , Benton, Irving , McDaniel , Bolar, Lujin, Jacks , Weyirch, Skiles, Sallee,, and
Marsh, department heads or supervisors . Each had a group of employees over whom he
exercised supervision in the performance of their duties.
MONTGOMERY WARD & COMPANY 795
the employees under them and at least some of them had authority
to recommend discharges. We are satisfied, and we find, in view of
the character of the supervision and authority exercised, by them
over the employees in the mail-order house and retail store, the failure
of the respondent to disavow their statements and acts when made and
which purportedly were at its instance 'and in its behalf, and other
circumstances shown by the record, that they, and each of them, repre-
sented'and acted for the respondent when engaging in such action and
conduct. In any event, we are satisfied, and find, that the Kansas
City employees had just cause to believe that said action and conduct
were for and on behalf of the management. Under these circum-
stances such action and conduct of these persons are attributable to
the respondent 18
We find that the respondent, by making known to the employees a
marked hostility toward the organizational activity of the Union and
an intention to prevent its success, by disparaging the Union, by
indicating that employee opposition to the Union would win its
favor, by threatening to close down the mail-order house and the
retail store if the Union organized the employees, by attempting to
form a company union as a means of combatting the Union, by solicit-
ing memberships for the company union, by attempting to learn the
identity of the employee soliciting memberships for the Union, and
by each of these acts, has interfered with, restrained, and, coerced its
employees in the exercise of the'rights guaranteed under Section 7 of
the Act.
B. Discrimination with regard to the hire and tenure of employment
of Guyer, Miller, Frank, Rothe, Horine, and Aldridge
The amended complaint, as amended, alleged that the respondent
between December 21, 1937, and July 9, 1938, discriminated in re-
gard to the hire and tenure of employment of Charles Guyer, Grant
C. Miller, George R. Frank, Arthur L. Rothe, John Horine, and Pearl
Aldridge.
The respondent moved during the hearing that a subpena daces
tecum be issued for the records of the Union in order to show which
employees of the respondent were members of the Union at the times
mentioned in the amended complaint, as amended. It contended that
such information was pertinent to the allegations of the complaint
as to discrimination in order to determine the treatment afforded
other employees who were members of the Union and in order to
determine whether the alleged discrimination actually discouraged
13 International Assoctiation of Machinists ; Tool and Die Makers Lodge No. 85 , etc, v.
N L R B,311U S 72,H J.HetnzCc v N L R.B,311U.S 514.
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership in the Union. The Trial Examiner denied the motion on
the ground that membership of employees in the Union could be
material by way of defense only if the respondent knew of such mem-
bership, which would in no way be shown by production of the union
records. We affirm this ruling of the Trial Examiner. Although
membership in the Union admittedly increased during the period in
question and although members of the Union may have been advanced
in position and remuneration, those facts alone would not show the
absence of discriminatory conduct by, the respondent if in dismissing
the employees in question here it was guided by anti-union considera-
tions.",
The respondent contends that its policy with respect to the labor
affiliations of its employees has been impartial, at least since the
latter part of 1936 or the early part of 1937, and that such policy
was communicated to the management of the Kansas City, Missouri,
mail-order house when it reopened in September 1937 following a
strike which lasted from May to September 1937. In support of its
contention, the respondent adduced evidence 'to show that after the
strike ended, Robert Green, at that time president of the Union and
who had been discharged by the respondent, was rehired to "drama-
tize" to the employees the respondent's complete impartiality with
respect to the union affiliation and activities of its employees; that
some management employees of the Kansas City mail-order house
were replaced after the strike; and that the respondent has'negotiated
fairly with the Union in regard to grievances. With respect to the
discharges alleged to have been discriminatory,' the respondent con-
tends that said mail-order house was the lowest of all its mail-order
houses in proficiency and that there was a wholesale change of per-
sonnel in it between September 1937 and March 1940 in an endeavor
to remedy this situation. These contentions, however, even if true,
do not of themselves establish the absence of discrimination in regard
to the hire and tenure of employment of the above-named employees
nor do they relieve the respondent of responsibility for any acts of
discrimination against such persons.
14 The Court in setting aside the Board's Order in the first hearing cited as an example
of unfair restriction of examination of witnesses , the Trial Examiner ' s refusal to allow
questioning of a witness as to the identity of employees soliciting memberships for the
Union at the respondent ' s plant." This examination, however, had reference to the 8 (2)
allegation of the complaint , as amended at the first hearing , and manifestly has no
beating on the issue of discrimination in the instant case. In referring to bias of the
Trial Examiner the Court stated that there was "a distinct hampering of inquiry on the
part of the Company and the intervener . One instance of this was repeated refusal to
allow answers as to membership in the C. I. O. With the issues of fact as they took
form here in the evidence , these ex, usions were plainly harmful to the Company and
the intervener in the development of their theories as to the facts ." However, the Court
further stated that " this observation is not made as concerned with an erroneous ruling
on introduction of evidence but as, possibly , having a bearing upon the partiality of the
examiner."
MONTGOMERY WARD & COMPANY 797
The respondent also introduced evidence that in May 193.9, prior
to the hearing in the instant case, the Acting Regional Director for
the Seventeenth Region suggested at a conference with the respond-
ent's representatives that if certain employees mentioned in the
amended complaint were reinstated, he would then recommend dis-
missal of the complaint as to the others. The respondent contends
that the subsequent proceedings upon the amended complaint' indi-
cates lack of good faith. We find no merit in this contention. The
evidence is conflicting as to the exact language used on this occasion.
It is clear that the Acting Regional Director made a personal recom-
mendation that was not intended to be binding upon the Board. It
it also clear that the respondent never in any way acted on the basis
of what was said at such conference. We find, as did the Trial Ex-
aminer, that the statement of the Acting Regional Director on this
occasion is no defense to the cases of discrimination alleged in the
complaint.
Charles Guyer was employed by the respondent in Kansas City,
Missouri, from July 25, 1925, to January 15, 1938. His first work
consisted of "running a distributing line for the automatic telephone
exchange that was to be installed" throughout,the retail store and
mail-order house. When this installation was completed about Janu-
ary 1926 Guyer was assigned to the work of maintaining the switch-
board and distributing line for the whole system. In addition he
was also given duties in the repair and maintenance of various kinds
of electrical equipment throughout the building, did the timekeeping
for "the maintenance, the box shop and the power plant," and on pay
day distributed the pay envelopes to the employees in those divisions."
In May 1937' Thompson, Guyer's superior, asked Guyer for his
opinion of the Union, asked him to "be a worker for the company
union," and made a disparaging remark about outside unions. At
that time Guyer answered that he did not know anything about the
Union, but preferred it to the "company union." 'Guyer joined the
Union on or about June 9, 1937, during the strike above-mentioned.
According to Guyer, when he met Thompson shortly afterwards near
the building housing the mail-order house and retail store, Thompson
said to him "Well, I see you have signed up with them Guyer.,"
Thompson did not deny making the foregoing remarks to him and
we find, as did the Trial Examiner, that Thompson made the state-
ments attributed to him. John Horine, another employee, testified
without contradiction, and we find, that-in October 1937 Hickey, man-
ager of the auto accessories department of the retail store, told him
15 Guyer testified that another employee statted assuming his timekeeping duties in the
early part of 1936 and that thereafter he was gradually relieved of such duties until May
1937 when he ceased performing them
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Guyer was an efficient worker, that "it is too bad that he'took
such activity in the C. I. O. union here, he is going to be fired for
his union activitives, I have that information out of the office." We
find that Rickey made this statement. Shortly before Christmas
1937 in Thompson's office Thompson- told Guyer, according to the
latter, that he had lost respect for Guyer when the latter joined the
Union, which Thompson referred to disparagingly. Thompson did
,not testify in denial of this statement, which we find, as did the Trial
Examiner, was made.
On January 15, 1938, Thompson discharged Guyer telling him that
another employee was to take his job. Guyer then went to the per-
' sonnel office and had the usual "exit interview" held by Lloyd R.
Sherrill, personnel director of the mail-order house, with permanent
employees who leave the respondent's service. Sherrill testified that
at the time of Guyer's discharge he did not know that Guyer was a
member of the Union and therefore did not consider such fact in con-
nection with his discharge. The evidence shows, however, that Sher-
rill did not make the decision to discharge Guyer, but that the dis-
charge was made upon the decision and recommendation of Thompson.
Although Thompson did not testify, his reasons for discharging Guyer
are stated on the "Authority for Payroll Change" card, signed by him
about the time of the discharge, as being inefficiency and insubordina-
tion. Thompson there stated, inter alia, "The removal of this man
for inefficiency and insubordination has been previously considered
but never carried out, because a satisfactory replacement employee has
not been available. We have now such a man ..."
The respondent's contention that Guyer was inefficient and insub-
ordinate is not supported by the record. Guyer testified that at
various times there had been complaints about the telephone service
and that during 1936 and 1937 as the equipment became older and
worn there were more complaints than formerly. During this period,
although Guyer was the only person who worked on the telephone
system and occasionally was pressed for time to perform his various
duties, he attempted to inspect it daily and to make necessary repairs.
Guyer testified, without contradiction, that Thompson insisted that
he use old and worn materials to make repairs, that 1936 was the
first year that enough supplies were available "to do any good at all
on keeping up the repairs," and that it was not until 1937 that he
received supplies within a reasonable time after requesting them.
Guyer had never been warned that his services were unsatisfactory.
In November 1936 Thompson recommended Guyer for an increase
in pay and the recommendation signed by Thompson at that time
contained the following statement regarding Guyer: "A very depend-
MONTGOMERY WARD & COMPANY 799
able man always on the job." 16 Guyer received increases in pay
in March and September 1937. ' At the time of Guyer's discharge
Joe Collins, chief electrician, told him that he did not know "what
was between" him and Thompson; that his work had always been,
satisfactory to Collins, and that after Thompson had "cooled off,"
if Guyer did, not "cause any trouble by keeping angry," 17 Collins
would try to have him reinstated.
With respect to the alleged acts of insubordination Guyer testified
that the only instance he could remember that might be so termed,
was on one occasion when Floyd Smith, a supervisor in charge of
the electricians, asked him to lend his watch to another employee;,
he refused to do so, and when Smith insisted on it he "cursed'
Smith. Guyer testified that he related the incident to Thompson
who stated, "I am afraid I would have hit him instead of just
cussing him if he would have done me that way." Guyer admitted
that he 'had had some other differences with Smith, but testified
that they took place before Smith became, a supervisory employee.
Neither Thompson nor Smith testified regarding Guyer's alleged
inefficiency and insubordination and the Trial Examiner credited
truthfulness to Guyer's testimony in regard thereto. We also credit
Guyer's testimony in this regard.
The respondent introduced in evidence a letter from the American
Automatic Electric Sales Company on March 3, 1938, stating that a
representative of that company had found numerous things wrong
with the respondent's private automatic telephone ekchange system at
Kansas City when he inspected it on January 24, 1938. As this
letter was written after Guyer's discharge, it obviously could have
had no influence on the respondent in the decision to discharge him.
Moreover, it is not inconsistent with Guyer's testimony as to his
alleged inefficiency. The letter was a sales letter, the writer seeking
the job of making regular inspections of the System, and the
material contained therein should be discounted for that reason.
The statement on Guyer's card, above-mentioned, that his dismissal
for inefficiency and insubordination had been previously considered,
but not acted on because of the unavailability of a satisfactory
replacement employee is unimpressive. We.do not believe that the
respondent would have retained Guyer if his alleged inefficiency' and
insubordination were really of consequence.
10 As noted by the Trial Examiner, although Thompson was present during part of the
hearing, he did not take the stand to deny or explain any of the remarks or statements
attributed to him by Board witnesses.
17 There was no explanation in the record as to what this statement referred to. Collins
did not testify and we find Guyer's testimony to be true.
800 DE'CISQONS OF NATIONAL LABOR RELATIONS BOARD
Under all the circumstances and in view of his 12 years of service 18
we find, as did the Trial Examiner, that the-respondent discharged
Guyer on January 15, 1938, and thereafter refused to reinstate him,
because of his membership in the Union, thereby discouraging mem-
bership in a labor organization and interfering with, restraining,
and coercing its employees in the exercise of the rights guaranteed
,in Section 7 of the Act.
Grant C. Miller was employed by the respondent from April 17,
1933, until December 21, 1937. During the period of his employment
lie was alternated between the central repair shop and the carpenter
shop, the latter also being referred to as the maintenance pay roll.
From May 1,937 until the termination of his employment on December
21, 1937, he was employed in the carpenter shop on the maintenance
pay roll under Thompson's supervision. Although the respondent
classified Miller during this period as a rough carpenter, his work
was not confined to, that.10 He spent considerable time repairing
hand trucks used for moving merchandise through both the retail
store and the mail-order house and was performing that type of
work-when his employment was terminated on December 21, 1937.
Miller joined the Union about 2 weeks before the strike began
in May 1937. At about that time Thompson informed him of his
opposition to an "outside union" and inquired of him' concerning
his attitude toward the Union. Miller replied, "if it is a bona fide
union and - can get a charter for it, I am for it 100 per cent."
During the strike Miller was a head steward on the picket line and
hauled water to employees on the picket line.20 ,
On December 21, 1937, Thompson informed Miller that the amount
of money allowed for operation of the maintenance department had
been reduced, that a reduction .in force was therefore necessary, and
that he had to lay Miller off. Although it appears that the respond-
ent did reduce the number of employees on its maintenance pay roll
at about the time Miller was laid off, the uncontroverted testimony
of Miller'shows, and we find, that three employees with less seniority
and whose work Miller could perform were retained in the carpenter
shop where he was employed at the time of the termination of his
employment. The evidence shows that in releasing employees the
is Montgomery Ward & Co., Inc. v. N. L. R. B. 107 F. (2d) 555 (C. C. A. 7).
19 Miller defined a rough carpenter as one who builds sections for keeping merchandise
and similar articles and a finished carpenter as one who builds office desks. He stated
that he did other work than that of a rough carpenter such as using machines-to "true"
lumber up and that, although he did not work on "fancy desks" for officers, he worked on
"most anything that came up."
21 Although several hundred people were active in the picket line, the activities of Miller
as well as of other employees concerning whom discrimination is found herein were suffi-
ciently conspicuous and took place under such circumstances that the inference is war-
ranted and we find, as did the Trial Examiner, that the respondent had knowledge of them.
MONTGOMERY WARD & COMPANY, 801
respondent considered performance, ability to perform more than
one type of work, potential promotion possibility, and seniority in
that order, and that all other factors being equal, seniority would
control. Miller's performance and his ability to perform more than
one type of work, as revealed by Thompson's statement to him, set
out below, were satisfactory and -he possessed greater seniority than
the three employees retained.
After-Miller was laid off another employee named George Pen-
nington was placed on Millers job of repairing trucks. Although
it appears that Pennington had been in the respondent's employ longer
than Miller, he was not repairing trucks at the time of Miller's lay-
off and Miller was unable to recollect that- he had ever seen Pen-
nington do truck repair work. The respondent introduced no evi-
dence to show that Pennington at any time had even done such work
.or that Miller's services were unsatisfactory. Although the respond-
ent stated that no person classified as a "rough carpenter" was either
retained at the time of Miller's release or hired thereafter, it made
no such contention with respect to the specific work of repairing
trucks. It is significant that the respondent placed a person never
shown to have repaired trucks before `on Miller's job, while at the
time of his release Thompson told him that he was "as good a car-
penter as he had and also a truck man" and that "ordinarily .if you
have got a carpenter he was no truck man but [Miller] was both of
them."
In view of Thompson's hostile attitude toward the Union as -re-
vealed in his discussions with Guyer and Miller, his interest in
Miller's attitude toward the Union at about the time Miller joined
it in May 1937, the outstanding part taken by Miller in connection
with the picketing during the strike, and the disregard of Miller's
efficiency and the respondent's established seniority policy in his se-
lection for lay-off, we find, as did the Trial Examiner, that the re-
spondent dismissed Miller on December 21, 1937, and thereafter
failed to 'reinstate him, because of his membership and activities in
the Union, thereby discouraging membership in a labor organization
and interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
Miller was earning 70, cents an, hour at the time his employment
*ith the respondent was terminated.21 Thereafter, up-to the time
of the hearing he had earned, approximately $800 on Works Progress
Administration employment. -
George R. Frank was employed by the respondent from October
1935 until June 16, 1938. He worked in the bill and scale depart-
21 This rate of pay appears to have been based on a 44-hour week.
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment of the mail-order house packing floor; his duties being "to
weigh parcels- and, apply the postage, insert bills and throw them on
the post office belt." From January 1938 until June 16, 1938, Frank's
duties consisted of packing order office shipments.
Frank joined the Union about April 24, 1937, and thereafter be-
came head shop steward and chairman of the publicity committee. He
was captain of the pickets during the strike and, except for a short time
when he was in Illinois, averaged about 16 hours a day of strike
duty in front of the building housing the mail-order house and re-
tail store. Frank continued his union activities after the strike and
solicited for union membership several employees of the packing
house floor at their homes or at other places away from their place
of employment. About a week after Frank returned to work fol-
lowing the conclusion of the strike he was assigned as "an instructor
of scalers," to instruct about 12 employees. At about the end of a
month J. J. Walz, head of the department, removed Frank from
this work. About this time according to Frank, Walz informed
him that his work was of the type Walz wanted, but added " . . .
I also find that your attitude,and opinion toward the company, isn't
what I want, and I hope that you see fit to change it." Frank
asked Walz what he meant and the latter replied "Well, it is in
regard to the unfortunate strike and union activities that we have
had." Frank then told Walz that he believed that all his past actions
were correct and that he saw no reason to change his attitude.
Walz replied that he could see by Frank's attitude that his ad-
vancement would not be the proper thing for the benefit of the re-
spondent. This testimony, was not denied and we find, as did, the
Trial Examiner, that Walz made the statements attributed to him
by Frank. Thereafter until shortly after Christmas 1937 Frank
worked in part at his old job and in part in the mail catalogue order
department.22 From about December 28, 1937, he devoted all his
time to his old job in the mail-order house packing floor.
Frank testified that about January 4, 1938, Walz said to him
... I see you're back on your old .job. I had hoped you had
changed your attitude by this time, but I have heard you haven't.
You are back in this old job and I want to see you doing better work.
You're getting more money on that job than you were before, and
we can't afford to pay that kind of money on that kind of work, and
I hope you remember that." Frank then asked for a transfer else-
where, if he was unable to earn his salary on his present job, but
was refused such transfer. This testimony was not denied and we
' The catalogue order department appears to have been one of the departments on the
mail -order house packing floor.
MONTGOMERY WARD & 'COMPANY 803
credit truthfulness to it. About January 5, 1938, however, Walz
transferred Frank to regular work in the catalogue order depart-
ment of the mail-order house ' where he was employed until he was
dismissed the following June 16.
Between January 1938 and June 16, 1938, Frank was active so-
liciting members for the Union among employees in his department
and succeeded in signing several as-members. About May 1, 1938,
as Edna Chapman, a biller in the department and a former secretary
of the Union, was going to the drinking fountain she gave Frank a
'slip of paper with her telephone number on it and asked him to
telephone her later. Frank testified without contradiction that
Richard Lujin, his supervisor in the catalogue order department, who
was present at the time of this incident, said "Frank, for your own
good, I hope you forget what you are involved in with Edna. I
lost a lot of money when we went out on strike, and I am not out of
debt yet." Frank responded that it' was none of Lujin',s business,
whereupon Lujin replied that he would make it his business. We
find, as did the Trial Examiner, that this conversation occurred as
testified to by Frank.
On June 16, 1938, Lujin, told Frank to report to Walz. According
to Frank, Walz said "Frank, Mr. Lujin and I have decided to let
you go, due to a drop in business; and, furthermore, we have found
three errors on you." Walz explained that the three errors were over
a 6-month period of time. Frank replied that he did not think that
Walz was being fair and that he did not believe that was the real
reason for his dismissal' because Lujin had "more errors than that
in the last 2 months." Frank further informed Walz "it's funny
that you are -letting me go because of errors when Mr. Harper-who
was head of the catalogue order division of the mail-order house-
made the statement yesterday that our work was going out fine and
he hadn't received any complaints for the past 2 weeks." This testi-
mony, which the Trial Examiner credited, was undenied and we
credit truthfulness to it. Frank identified Harper as being the
supervisor of 85 catalogue order departments and offices and as
having charge of receiving complaints about them.
Lujin testified at the hearing that between March and June 1938
Walz asked him if Frank belonged to the "C. I. O. Union" and
that he answered Walz in the affirmative. About a month later,
according to Lujin, there was a sound truck circling the building
"announcing something about the union, and someone went to the
xN indow to look out, and Mr. Walz asked me who it was, if it was
Frank that went to the window, and I answered him that I didn't
know." Lujin further testified that thereafter he called to Walz's
attention a package which had on it a misdirected label placed there
441843-42-Not 31--52
804 D'E'CISaONT!S OF NATIONAL LABOR RELATIONS BOARD
by Frank, and that Walz said "that that was the chance he had
been waiting for." Although Lujin was discharged on Walz's recom-
,nendation in October 1938, the Trial Examiner credited his testimony
because it was consistent with that of Frank and 'because the
respondent did not call Walz as a witness: We agree with the Trial
Examiner and we find that Walz made the statements attributed
to him by Lujin.
The, day of Frank's discharge Walz told Sherrill that he had
discovered a misdirection of an order by Frank, that he wanted to
correct this condition on the packing floor, that he had talked about
it numerous tunes to the people in the department, and that he felt
it would be "in order," to make an example by releasing Frank from
the pay roll because of this error and because of other errors that
had been made by frank. Walz also complained to Sherrill that
two packages had' been so improperly packed by Frank that they
broke open before they left the building and that on numerous
occasions Frank had 'made errors in listing information for the bill
of lading. Sherrill testified that he agreed with Walz that it was
"in order" to release Frank based on the facts Walz gave him and
a quick review of a survey which had been made-of Frank's work,
and that there had been misdirected orders. Sherrill also mentioned
to Walz that there was a general reduction in the pay roll at that
time.
The record fails to support the respondent's contention with respect
to Frank's inefficiency. Frank admitted that Walz, had spoken to
him about the number'of errors being made in packing, but stated
that the only time Walz cautioned him about his packing was on
an occasion when a package he wrapped broke open before it. left
the plant. Frank contended that on that occasion the break was
caused by a heavy object being thrown on the package before it left
the building. He testified, further, that Walz then merely cautioned
him "about doing it again." Frank also testified that a few days
before his dismissal the misdirecting or mixing of several catalogue
order shipments was called to his attention and that he was accused
of misdirecting an order, but stated that he did not know whether
or not he had handled it. This testimony was undenied, was credited
by the Trial Examiner, and we find it to be true. There is no evi-'
deuce in the record that the mistakes referred to were made by
Frank. Although Lujin testified that he had had more trouble
with Frank on the misdirection of packages than with any other
employee, he further testified that in the 6 months prior to Frank's
discharge Frank made about four errors that he recalled and that
the other two employees in the department doing the same type
of work made several errors in that period of time, one of them
MONTGOMERY WARD & COMPANY 805
making two errors in 1 day "in the nature of switched labels."
Sherrill testified that he did not know how many orders Frank mis-
directed and that "we 'had a lot of trouble with wrong shipments
and couldn't put our finger on the responsible individual." Although
Sherrill was satisfied without investigating them that the reasons
given by Walz were the real reasons for Frank's discharge and
made no effort to transfer him to some other position, it is significant
that- he "vetoed a number of Mr. Walz's recommendations [as to
dismissal of employees] on the packing floor" and transferred some
such employees to other positions. There is no showing of the extent
of the reduction in the pay roll at that time or that Frank would
properly have been among those included in the reduction. In view
of the testimony of Frank -and Lujin, the failure of Walz, who
recommended the discharge, to testify regarding Frank's alleged
mistakes, and the vagueness and inconclusiveness of Sherrill's testi-
mony, we agree with the Trial Examiner and are satisfied and find
that the real reason for Frank's discharge ii-as not his alleged
mistakes, but his union membership and activities.
Frank made several unsuccessful attempts to secure' reinstatement
subsequent to -his discharge. He obtained several temporary jobs
since his discharge and at the time of the hearing had earned
approximately $325.
We find, as did the Trial Examiner, that the respondent discharged
Frank on June 16, 1938, and thereafter refused to reinstate hill,
because of his membership and activities in the Union, thereby dis-
couraging membership in a labor organization and interfering with,
restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
Arthur L. Rothe began work for the respondent on February 27,
1936, as a salesman in the paint and wallpaper department of the re-
tail store and was given the status of a regular employee on the
following August 7. After he worked during the fall of that year iii
the light hardware and toy departments, his services were terminated
on December 24, 1936, in a reduction in personnel. The respondent
reemployed Rothe on February 15, 1937. Until his services were
terminated on December 24, 1937, Rothe worked successively in the.
paint and wallpaper, light hardware, heavy hardware, plumbing, and
toy departments of the retail store.
Rothe joined the Union on or about May 2, 1937, was elected shop
steward, and wore his union button at work. A few days after Rothe
joined the Union, Robert Elliott, had of all the departments on the
first floor of -the retail store, asked Rothe why he was not "loyal to
the company" and vhy he would not join "the company union."
Rothe answered that he was dissatisfied with conditions, to which
806 D'E'CISION!S OF NATIONAL LABOR RELATIONS BOARD
Elliott responded that conditions had been improved. Elliott further
stated" that "we don't want any outsiders in here, to run our business,
and I think we can get along better if we have a union of our own."
About the middle of that month B. B. Benton, supervisor of the heavy
hardware department where Rothe was then working, had a conversa-
tion with Rothe one day shortly after Benton had been in the office
of Dodge, the retail store manager. Benton told Rothe on this occa-
sion that Dodge wanted to discharge Rothe. When Rothe asked Ben-
ton for the reason the latter replied that Dodge had said that Rothe
"was a God damn C. I. O." Neither Elliott nor Benton testified at
the hearing and we find, as did the Trial Examiner, that they made
the above remarks.
Rothe participated in the strike activities. He was elected to the
executive board of the Union immediately after the strike began,
was at the- offices of the Union ,across the street from the building
housing the respondent's mail-order house and retail store almost
daily, and served on the picket line. He returned to work with the
other employees at the close of the strike. About November 1, 1937,
Elliott told Rothe that he had never found Rothe to have made any
mistakes' and that because an employee in the toy department was
making many mistakes he would transfer Rothe to the toV department
until after. Christmas and then would transfer him back to the
plumbing department. Rothe replied that he would rather stay in
the plumbing department. Elliott then said : "Rothe you are the only
,man I have that can handle this job. You are my keyman and I
want you to take this job." Rothe worked in the toy department
until the evening of December 24, 1937, at which time Elliott told
him that he was "going to have to let you go." We find, as did the
Trial Examiner, that Elliott made the above remarks.
The evidence shows that the respondent kept Rothe under surveil-
lance because of his union membership both before and after his dis-
missal. Horine testified without contradiction that one evening
shortly before Christmas 1937, in the auto accessories department of
the retail store, Hickey said to him in the presence of Gibson, assistant
manager of the retail store, that toys were disappearing from the toy
department and that "they were watching Rothe, that he was a C. I. 0..
and they wanted to watch him closely, because that might be where
the toys were going." The Trial Examiner credited Horine's testi-
mony in this respect and we find his testimony to be true. On or
about April 14, 1938, after the respondent had dismissed him, Rothe
returned to the store, and bought a load of kindling. After Rothe
had paid for his kindling, but before he had loaded it, he met Gibson
in the store. Gibson told one of three store detectives present to
"watch Rothe and see that he don't take anything dut of the retail
MONTGOMERY WARD & COMPANY 807
store or off the- dock unless he has a ticket to show that he has paid
for it." One of the detectives thereupon watched Rothe until he h'ad
loaded the kindling. On or about May 21, 1938, in the evening Rothe
and Horine were in the retail store. Gibson and one Bowman, a
detective in the retail store, followed them in the store. Horine testi-
fied without contradiction. and we find that Bowman told them that
Gibson had ordered him to watch them "through the store." 23
The respondent contends that the reason for Rothe's dismissal was
It "reduction in force." However, Rothe testified that an employee
with less seniority was retained in the department at the time of his
lay-off. The respondent offered no evidence to refute this testimony,
which the Trial Examiner credited, and we find it-to be true. More-
over, the hostile attitude of the respondent toward Rothe that became
apparent soon after he joined the Union indicates that a "reduction
in force" was not the real reason for his dimissal. Rothe sought rein-
statement during the week following his dimissal, but was told by
Elliott "you are fired." It is significant that Rothe was not trans-
ferred back to the plumbing department as Elliott had indicated
would be done.
In the fall of 1938 the grievance committee of the Union discussed
with Williams, manager of the retail store, the possibility of rein-
statement for Rothe. Williams. suggested to Rothe in the presence
of the committee that he could sell, but could not "get along with the
people" in his department, advising him to seek other work. Rothe
asked Williams what persons he could not "get along with." Wil-
liams answered that "you just don't fit in the picture.", . The respond-
ent offered no evidence to show that Rothe could not "get along with"
people. Rothe testified regarding one occasion in the early part of
.1938 when he was in the store with one Price, an employee who had
been laid off at the same time as Rothe, who at that time had an alter-
cation with Elliott. Rothe testified that the only part he played in
the altercation-was to "separate" them. No evidence was offered to
the contrary and the Trial Examiner accepted Rothe's testimony as
true. We find that the incident occurred as described by Rothe.
The respondent contends that since neither Price nor Rothe's wife,
an employee of the respondent who joined the Union at the same time
as Rothe, was discriminated against, there was no discrimination
against Rothe at the time of his release or thereafter. We find this
contention to be without merit. Although Price was an officer of the
Union, was reinstated shortly after this incident occurred, had been
promoted a number of times by the respondent, and at the time of the
83 The respondent moved at the hearing to strike all testimony as to statements alleged
to have been made by Bowman, who was deceased at the time of the hearing. The Trial
Examiner in his Intermediate Report denied the motion The ruling of the Trial Examiner
is hereby affirmed
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hearing was a supervisor, in the light of the other circumstances, the
fact that he was not discriminatorily treated does not establish the
absence of discrimination against Rothe.24
We find, as did the Trial Examiner, that the respondent discharged
Arthur Rothe on December 24, 1937, and thereafter refused to rein-
state him because of his membership and activities in the Union,
thereby discouraging membership in a labor organization and inter-
fering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
At the time of his dismissal Rothe was earning $18.00 per week.
He has not earned any money since his dismissal, although he has
occasionally traded real estate., ,
John Horine was employed by the respondent on February 21, 1935,
in the auto service station of the retail store. On October 9, 1936, lie
was assigned to part time service in the auto accessories department of
the retail store and divided his time between that department and the
service station. In the early spring of 1937 Horine told one Norton,
regional manager of the respondent's retail organization in the Kansas
City territory, that he "wanted to get in a position where I could slake
more money and advance myself." Norton told Horine that he was
going to place him in the auto accessories department inside the store,
that he wanted him to learn the operations of that department, that
he had plans for his advancement, and that he was going to increase
his salary.25 On March 12, 1937, Horine was assigned to full-time
work as a clerk in the auto accessories department. On or hbout May
10, 1937, according to Horine, Hickey told him that the Union was
organizing the respondent's employees and to join the so-called "com-
pany union." Horine testified that he joined that organization, at the
instigation of Hickey and Gibson told other employees to join it, and
attended its first meeting: Also, acting on Hickey's instructions,
Horine attempted to find out who had application blanks for the Union
in the store and reported one such employee' to Hickey. Neither
Hickey nor Gibson testified in denial of the above testimony which we
find, as did the Trial Examiner, to be true. After the strike began on
May 25, 1937, Gibson told Horine that he would have the latter trans- I
ferred to some other store for the period of the strike and on or about
June 10, 1937, Horine was ordered to report to the respondent's store at
2} Rothe 's wife was promoted by the respondent subsequent to the time she joined the
Union However, there is uncontradicted testinionv, credited by the Trial Examiner and
which we find to be true, that in May 1937 Hickey and Gibson discussed discriminatorily
transferring Rothe and his wife Under the circumstances the favorable treatment afforded
Rothe's wife by the respondent does not indicate that Rothe was not discriminated against
because of his union membership and activities nor does it negative the hostile attitude
of the respondent toward Rothe because of such membership and activities
2a The findings above are made on the basis of IIorine ' s testimony which was not denied
by Norton.
MONTGOMERY WARD & COMPANY 809
Chanute, Kansas. He reported at that store and there served as head
of the auto accessories and tire department until the following August
31. On that date the Chanute store received a telegram from Dodge,
the retail store manager at Kansas City, asking it to have Horine "re-
port for work Kansas City store immediately." The following day
Clark, manager of the Chanute store, gave Horine the telegram and ac-
cording to Horine told him "you have been doing an awfully good job
here but I have got some bad news for you on my part," explaining -
"... the department at Chanute, Kansas, since you have been here has
increased to where it is doing more business than it has ever done since
I have been in the store here at Chanute, Kansas. I bate to lose you,
but you will have to report back to Kansas City." We find, as did
the Trial Examiner, this uncontroverted testimony to be true. Horine
reported for work in the Kansas City store on or about September 2,
1937, resuming work in the auto accessories department as a salesman.
At that time Dodge told Horine that "they had plans" for him.
In November 1937, Elsie Jacks, who had charge of the receiving
-room, asked Horine "to sign up in the new company union." 26
Horine told her that he did not wish to have anything to 'do with
either union and that, when he decided to join a union, he'would join
the one he,preferred. Thereafter in February 1938 Horine joined the
Union. He proceeded to carry his union card in his shirt pocket "in
plain view." `Horine testified that a few days after he had joined
the Union, Irving ,97 his department head, took the card out of his
pocket, looked at it, handed it back to him, and walked away with-
out saying anvthing. He further testified that Elliott, head of all
the departments on the first floor of the retail store, told him, about
the same'time, that he thought that he should put the card in a dif-
ferent place than his shirt pocket. This testimony is undenied and we
credit it, as did the Trial Examiner.
Horine, until he joined the Union, acted as an assistant to the head
of the auto accessories department, in which capacity he ordered
merchandise; "checked," and made adjustments. In the fall of 1937
Horine had been informed by Gibson that Williams, manager of the
retail store, was going to place him in charge of auto accessories "in
the very near future." However, another person was placed in
charge. As one duty during this period Horine had been authorized
by Gibson to issue credit refund slips, by means of which a cus-
tomer who returned goods could get cash ' or credit therefor. A few
days after Horine joined- the Union the respondent revoked his
authorization to issue such slips.
29 This was a successor to the organization Horine had previously joined.
17 Irving had succeeded Hickey as head of the auto accessories department.
1
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On or about March 11, 1938, Elliott told Horine that he was to be
transferred to the heavy hardware department under B. • B. Benton.
Thereafter on March 12, Horine -was placed at work in that depart-
ment, but on March 15 was transferred to work outside in the shrub-
bery department and continued at that work until April 2, 1938.
Horine testified that on March 21, 1938, Williams said to him,
"Horine, you are contaminating the girls in the store." When
Horine asked Williams what he meant, the latter responded "you
know what I mean" and left. This- testimony is uncontradicted and
we find that Williams made the remarks attributed to him by Horine.
Prior to that date Horine had solicited employees to join the Union
on company property, but not on company time. From April 2, 1938,
to April 21, Horine divided his time between the shrubbery and heavy
hardware departments. Thereafter he'spent most of. his time in the
heavy hardware department until May 9, 1938, on which date he
assisted the "display man" in the piece goods department. There-
after,until May 24 Horine assisted him in the Kansas City, Kansas,
store of the respondent which was being prepared for opening. On
or about the evening of May 21, 1938, as stated above, Horine and
Rothe were followed and watched in the Kansas City retail store of
the respondent by Gibson and Bowman. On May 24 Gibson assigned
Horine to the bargain room. According to Horine, McDaniel, head
of that department, told him about that time that,he was transferred-
to the bargain room because he had been seen in the store'with Rothe
the preceding Saturday "and the company Was afraid" Horine "would
get the employees in the Kansas City, Kansas, store to join the
Union." This testimony was not denied and we find, as did the Trial
Examiner, that McDaniel made this statement. Horine worked in
the bargain room until his discharge on July 9, 1938.
On June 17, 1938, Horine was, summoned to Williams' office where
Williams told him that it had been reported to him that Horine had
been soliciting employees in the store to "sign up" in the Union and
that he had "signed up" an employee "last Saturday." Horine denied
"signing up" the employee. Horine's testimony with respect to the
conversation was as follows : Norton, regional manager of the re-
spondent's retail organization in the Kansas City territory, who was
present, then told Horine that he had tried to help him, but that "as
far as the C. I. O. ever doing you or anybody else any good around
here, you are on the wrong side of the fence, because Montgomery,
Ward will not and never have recognized a labor organization, a
nationally known labor organization, and never will." Williams then
summoned Gibson who stated that Horine had "signed up" the em-
ployee "two or three Saturdays before that." Horine then admitted
to Williams that he had signed the employee up "about three weeks
MONTGOMERY WARD & COMPANY 811
ago on my lunch time." Norton told Horine at that point that he
"didn't exactly tell the truth" and Williams told him that he was
placing him on 30 days' probation and that "if you want to drop the
Union and do like the company wants you to do and not take any
activities in-the C. I. 0.. you can have your job around here, but other-
wise I will fire you at the end of 30 days." Norton added, "Horine,
there was a collection taken up around here for you when you lost
your wife two years ago. That is a fine way to show your apprecia-
tion to the company to turn around now and join the C: I. 0." The
foregoing testimony was undenied and we find that Norton and
Williams made the statements attributed to them by Horine. Later
that same day Horine applied to Mrs. Bolar, head of the credit depart-
ment of the retail store, for an extension of his time credit account
with the store. According to Horine she told him that had he made
such application that morning it would have been refused and added,
"but I think you are intelligent enough to drop with the C. I., O.
union and do as the management around here wants you to do. I
think you have your troubles with Mr. Williams straightened out
now. I think it will be all right to let you charge additional to your
account." This testimony was undenied and we find it to be true.
On July 9, 1938, Horine while off duty solicited another employee
for union membership. The evidence, although somewhat unsatisfac-
tory on the point, tends to indicate that the employee whom Horine
solicited was also off duty. When Horine reported to work a cashier
in the bargain room asked him what he had been talking about to
the employee. Horine refused to tell the cashier. Shortly afterward
he observed the cashier talking to McDaniel, head of the bargain
room, who then went to Williams' office. At the close of work that
day Horine's time card was out of the rack and Boone informed
him that his employment was terminated on orders of Williams. On
July 11, 1938, Horine had an interview with Williams who confirmed
the statement of Boone and, according to Horine, told him that he was
"discharged for belonging to the C. I. O. Union" and that "it would
he mighty hard for me to get a job any place after being fired out
there for union activity." Williams did not deny making this state-
ment and we find Horine's testimony to be true.
On July 15, 1938, Williams gave brine a "service letter," 28 in
which Horine's employment with the respondent was reviewed and
which stated that he was discharged for disturbing fellow employees
during their working hours and soliciting union memberships during
working hours, after being warned about it by the respondent.
28 It appears that under a statute of the State of Missouri an employer is required to
give an ex-employee such a letter upon request
I
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On or about August 15, 1938, brine conferred with Mrs. Bolar
in her office concerning his account with the respondent. He testified
without contradiction, and we find, that on that occasion Bolar said
to him, "Horine, if you wouldn't have joined the C. I. O. Union, you
would still be working here now. It is a shame that you lost your job.
If you would have stayed with the company and not have joined
the C. I. O. Union-you was always treated all right before you joined
the union, and you would be treated the same if you would have
never joined."
The respondent contends that Horine was discharged for the reasons
stated in the "service letter." The respondent claims that he is un-
worthy of belief, and that therefore it should not be required to
rehire him. Horine denied that he solicited memberships for the
Union while he was on duty and stated that at the June 17, 1938, dis-
cussion with Williams, the latter and Norton had told him that when
he was not on duty he was free to do anything he pleased and that
when in the store he was regarded as any other ^ customer. The
respondent offered no evidence to establish that Horine had engaged
.in the activity of which it accused him. , Moreover, there is no evi-
dence that the respondent ever had announced a rule to its employees
against union activities on company time and property.
The respondent offered evidence that Horine had instituted three
legal proceedings against it in other forums and that his testimony in
those proceedings was inconsistent with his testimony in the present
proceeding. There is no evidence with respect to one of the proceed-
ings29 and the inconsistency in another proceeding is not shown to
be material to that proceeding and is not material herein.30 It appears
that Horine was somewhat successful in two of the proceedings and
unsuccessful in the third.31 The evidence regarding these proceedings
is of slight, if any probative "value in this case as to Horine's' credi-
bility. With respect to the instant proceeding, it is highly significant
that the respondent did not place on, the witness stand any of the
persons mentioned by Horine in his testimony in order to rebut such
testimony. Under all the circumstances we credit, as did the Trial
Examiner, the testimony of Horine and we find that the respondent's
contention as to his veracity is without merit.
29 This was a lawsuit for overtime wages.
30 It appears that Horine testified in this proceeding , a Missouri Workmen' s Compensation
Commission hearing, that he commenced working in the bargain room of the retail store
in February 1938 In the present proceeding Horine testified that he did not remember
whether he testified to that effect in the Compensation Commission hearing and stated
that he commenced working in the bargain room in May 1938
a The respondent introduced, in a motion to strike , a statement of testimony given by
Horine in the third proceeding , a libel suit , 'that is inconsistent with testimony given by him
in the present proceeding . The testimony set out in the motion is incomplete and affords
no support to the respondent 's contention that Horine was an untruthful witness. The
Tiial Ex.iuluei denied the motion. This ruling of the Trial Examiner is hereby affirmed.
MONTGOMERY WARD & COMPANY 813'
We are convinced from the foregoing facts that the respondent
discharged Horine on July 9, 1938, not because of infraction of a rule,
but because he had joined and assisted the Union. At first the re-
spondent regarded Horine as a satisfactory employee as was evidenced
by its plans for his advancement. This esteem was heightened when,
at the respondent's instigation, he joined the "company union," told
other employees to join that organization, and reported an employee
who had application cards for the Union in his possession. He re-
ceived his reward for his loyalty by being transferred to another of
the respondent's stores during the period of the strike. After the'
strike he was returned to his old position, was given added responsi-
bilities, and even considered for appointment as head of the depart-
ment. After Horine had joined the Union the respondent completely
reversed its attitude toward and treatment of him. Some of his
authority was revoked. Whereas he had consistently worked in the
service station and ,into accessories department until he joined the
Union, thereafter the respondent shifted him constantly from one
type of work to another. He was accused of soliciting union member-
ships among female employees and was on one occasion placed under
surveillance by the respondent. The had of the bargain department
openly admitted to Horine that his transfer to that department was
motivated by the respondent's fear that he would secure union mem-
berships among employees in another of its stores. While the re-
spondent had always praised Horine before he joined the Union, sub-
sequent to that time it found fault-with him. The accusation against
Horine of violating a company rule regarding union activities and
of disturbing employees while on duty is shown by the statements of
Williams, Norton, and Bolar to be only an attempt to excuse some
action against him because of his union activities. There is no sub-
stantial evidence that Horine ever solicited or disturbed employees
while on duty. Finally the anti-union statements, and threats of
supervisory employees to' Horine reveal the real reason for his
discharge. -
We find, as, did the Trial Examiner, that the respondent discharged
Horine on July 9, 1938, and thereafter refused to reinstate him be-
cause of his membership and activities in the Union, thereby discour-
aging membership in a labor organization and interfering with,
restraining, and coercing its employees in the exercise of'the rights
guaranteed in section 7 of the Act.
Horine was earning $25 per week at ,the' time of his discharge.
From July 31, 1938, until the time of the hearing he had been employed
elsewhere, with the exception of 1 week when he was unemployed.
During the winter of 1939-40 he worked part-time.
Pearl Aldridge began work for the respondent on October 5,1936,
as a temporary employee in the receiving room of the retail store'and
814 DECISIONS OF N'ATI'O eAL LABOR RELA'TTONS -BOARD
became a regular employee on October 6, 1937. She was laid off on
December 23,.1937, and was reemployed on September 19, 1938. The
amended complaint, as amended, alleges that the respondent termi-
nated the employment of Aldridge on.December 23, 1937, and did not
reinstate her until September 19, 1938, because of her affiliation with
the Union." '
Aldridge joined the Union in May 1937. She participated in the
strike, serving on the picket line, working in the kitchen where meals
were served to the strikers, and engaging in organizational work.
Moreover, she testified in the, prior Board hearing in June and July
1937 involving the respondent.
After the termination of the strike in September 1937 Aldridge
returned to her position. Shortly thereafter Leo Weyirch, super-
visor of the department in which Aldridge was employed, was re-
placed by one Skiles , who had been a detective in the retail store.
From the time Skiles took charge of the department until Aldridge's'
employment was terminated on December 23, 1937, he assumed an
attitude of watchfulness of Aldridge at her work. Moreover, during
that time Elsie Jacks, then "one, of the instructors of new girls that
came into the department" made it a practice to walk behind Aldridge
almost every time she went to the washroom. The respondent at-
tempted to prove that there was a mutual dislike between Aldridge
and Jacks. Aldridge admitted that she did not "like . . . [Jacks]
very well," but stated that she had no reason to feel that Jacks felt
the same way about her until Aldridge joined the Union, explaining
that Jacks and other girls in the department were attempting to
"organize the company union." Aldridge had never been repri-
manded-for her work or conduct while working.
On December 23, 1937, Aldridge was laid off by Boone, who in-
formed her that she would be recalled when work picked up. In
February 1938 one Josephine Kelly, who had a year less seniority than
Aldridge, was recalled and placed on the work Aldridge had been
performing . That day Aldridge applied to Skiles for reinstatement.
He told her that Kelly would be employed only a couple of -days and
that Gibson had recalled her. Aldridge then talked to Gibson who
informed her that Skiles had recalled Kelly. Thereupon Aldridge
again spoke to Skiles about the matter and while the two were talking
Gibson "came along." Aldridge testified, without contradiction, that
she stopped Gibson who in answer to questioning by, her responded
`Why, no. Mr. Skiles is the one that called her in" and that Gibson
then "smiled and walked away and Mr. Skiles says `He is just passing
82 The amended complaint alleged that Aldridge was reinstated on October 2. 1938 In
her testimony Aldridge did not definitely specify the date of reinstatement, but the re-
spondent's records show and the Trial Examiner found September 19, 1938, to be the
correct date The amended complaint was amended to conform to the woof.
MONTGOMERY WARD & COMPANY 815
the buck.''" We find, as did the Trial Examiner, that Gibson and
Skiles made the remarks attributed to them. A few days later Al-
dridge conferred with Williams about her job. Williams, told her
that "he didn't have anything to do' with the hiring of the people,
that Mr. Gibson had full charge of that." At Williams' suggestion
Aldridge talked to Gibson who told her that he had no work for her
at that time. She returned to the store four or five times thereafter
and applied to both Gibson and Skiles for reemployment. They told
her on these occasions that she "would be the next one called in."
Aldridge was not, however, recalled, except for one day's work in the
spring of 1938. On May 16, 1938, at the suggestion of Skiles, she
applied for employment at the Kansas City, Kansas, store of- the
respondent. Aldridge worked in the receiving room of that store
for six weeks under the supervision of the same Elsie Jacks referred
to above.
Shortly after her employment with the Kansas City, Kansas, store
of the respondent had been terminated Aldridge filed a grievance
with the Union with respect to the treatment she had received at the
Kansas City, Missouri, retail store. In September the grievance
committee of the Union met with Williams to discuss grievances of
its members, 'including that of Aldridge. Williams informed the
committee in the course of the conference that Skiles had been , re-
moved from the store and stated "I don't blame you for feeling that
way about Skiles, because Skiles was anything but fair." The com-
mittee then stated that Skiles was the person about whom it wished
to lodge a grievance. It "felt Skiles was discriminating against her
[Aldridge] because she was a member, of our organization."
Williams asked the committee to "give him a little time to check into"
Aldridge's case and; told it that, if its statements were correct, she
would. be reinstated. The following day Aldridge was reinstated at
the same type of work she had been performing when laid off, but in
a different department. Williams told her that the records showed
no complaints about her work and that he saw no reason why she
should have been laid off in the first place. He also informed Robert
Green, president of the Union and international representative of
the United Retail and Wholesale Employees of America, that "I
told her there was no reason why -she should be off the pay roll."
The day Aldridge resumed work Boone asked her why she was tell-
ing everybody about how she "got back to work," that "it was com-
ing to her [Boone] front all over the store," and that "she just didn't
like the turmoil."
The respondent contends that Aldridge's lay-off in December 1937
was due to a reduction in force and that no discrimination was prac-
ticed against her. The respondent referred to a certain other mem-
816 DECISION'S OF INT'ATIONAL LABOR RELATIONS BOARD
ber of the Union , who had been laid off at the same time , who was
thereafter reinstated and to the fact that Aldridge had been given
one day's work in the store subsequent to her lay-off and six weeks'
work in the Kansas City, Kansas, store . Aldridge admitted that she
had been laid off at the Christmas season in 1936, that other girls
in her department had been laid off at the Christmas season in 1937,
and that she expected to be laid off at that time. On the other
hand there is uncontradicted testimony concerning the surveillance of
Aldridge by Skiles and Jacks for some three months prior to ' her
lay-off and also uncontradicted testimony that Williams told her
at the time of her reinstatement that he saw no reason why she
should have been laid off.
Although her case is not entirely free from doubt, we do not find
upon the record presented that the sole or a contributing cause of
her lay-off was her union membership or activity . However, neither
the fact that another member of the Union was reinstated to her posi-
tion nor the fact that Aldridge obtained employment in the Kansas
City, Kansas, store of the respondent after her lay-off establishes that
the failure ' to reinstate Aldridge to her position was not discrimina-
tory. There is no showing in the record that the other employee had
engaged in union activities.
The activities of Aldridge in the Union , the unexplained treatment
accorded -her by Skiles and Jacks in the fall of 1937, the reinstate-
ment of an employee with less seniority than Aldridge in the spring
of 1938 to do the same type of work she had been doing, the evasive=
ness of the answers given her by Skiles and Gibson when she sought
reinstatement in the spring of 1938, together with the other circum-
stances related above, reveal. that the respondent 's purpose was to
deny reinstatement to Aldridge because of her union membership and
activities.
We find that the respondent failed and refused to reinstate,
Aldridge in February 1938 because of her affiliation with the Union,
thereby discouraging membership in a labor organization and inter-
fering with , restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
Aldridge was earning $15.00 per week when she was laid off in
December 1937 . She earned approximately $85.00 between that date-
and her reinstatement in September 1938.
C. The alleged discrimination with regard to the hire and tenure of
employment of Johanna Smith, Lela Simmons , and Wilma Bell
Johanna Smith was employed by the respondent on January 1, 1936,
as a saleswoman in the retail shoe department . She'became a regu-
lar employee in that department on February 24, 1937, and continued
as such until December 24, 1937, when she was placed on part time.
MONTGOMERY WARD & COMPANY 817
On March 2, 1938, she resumed full-time work as an extra employee
and worked until May 21, 1933, when her services were terminated by
the respondent.
Smith joined the Union in April 1937. Prior to the strike she wore
her union button in and about the store. Smith testified without
contradiction that in May 1937 before the strike started one Sallee,
who had charge of the sales force in the shoe department, said to
Smith when "the Ford people were having a demonstration out in
front" of the respondent's store, "There are your friends Mrs. Smith.
Look them over." We find, as did the Trial Examiner, that Sallee
made the statement attributed to him. During the strike Smith
worked in the soup kitchen of the Union.
After the strike Smith returned to her former position in the shoe
department. After her return to work Sallee did not acquaint Smith
with the stock and sales as he had done prior to the strike. Smith
complained to Gibson and told him that she "thought there were so
many slurring remarks made in the department that-[she] couldn't
stand it any longer." Gibson told her that he thought she was
mistaken and sent her back to work in the-shoe department.
On December 24, 1937, Smith was placed on part-time employment.
One Marsh, who replaced Sallee as head of the sales force in the
department at that time, told her that it was due to -a reduction in
force. She complained to Williams that an employee with less
seniority was retained. Williams, after investigation, told Smith
that the employee retained had been employed in other departments
and had greater seniority. On March 2, 1938, Smith was again placed
on full-time work.
On May 21, 1938, Boone sent Smith to the medical department for
a physical examination, in accordance with a rule of the respondent
that' employees who had been off the permanent pay roll for '60 days
were required to pass the physical examination.33 Smith was ex-
amined by Doctor John H. Ogilvie, the physician in charge of the
respondent's medical department at Kansas City, who reported to
the respondent regarding her as follows :
Has hay fever from August 15 to first frost. General physical
is 0. K. except for increased sounds in chest. Do not believe
she is satisfactory from our standpoint.
Smith testified that Ogilvie told her that she was "0. K." and sent
her back to work.
Smith worked the balance of the day. At quitting time her card
was not in the rack and Boone told her that she did not pass the
s1 Smith had been on part-time work only , and, therefore , not on the permanent pay roll,
for a period of more than 60 days prior to March 2, 1938, when she resumed full-time
work.
818 D'E'CISIONS OF NATIONAL LABOR RELATIONS BOARD
physical examination. Smith replied "that is a lie, I did pass the
physical examination. You know that it is because of this labor
trouble that you are doing that." Smith then saw Williams and
Gibson, stating to them, "if you don't like me you can fire me be-
cause you don't, like my work. Fire me for anything, but not for
physical disability. I just had an examination by Dr. Rising [Smith's
family, physician] two weeks ago, and he said I was O. K." Gibson
replied to Smith, "We have to go by the doctor's orders."
Doctor Ogilvie testified that he was responsible to the medical
director of the respondent in Chicago and that his instructions had
always been to reject persons suffering from certain disabilities, in-
cluding hay fever. He stated that no one connected with the mail-
order house or retail store has any authority with respect to the
medical standards of the respondent or as to who shall pass or fail
to pass a physical examination. He further testified that he had
never received instructions at any time from anyone in a position
of authority with the respondent suggesting who should fail or pass
a physical examination.34
On February 23, 1937, when Smith received her original physical
examination she filled out answers to questions on a "physical ex-
amination and history" blank supplied by the respondent. Although
Smith indicated on- the blank that she had hay fever, Doctor J. J.
Farnsworth, a physician who then assisted in the medical department
and who examined her, "accepted" her. Ogilvie testified that at
that time Farnsworth was just an occasional examiner "brought in
to take the load off of" Ogilvie and that he was not as familiar with
the methods as Ogilvie. Ogilvie further testified that Farnsworth's
instructions were to reject applicants whom- he found on examina-
tion to have hay fever or who gave a history of hay fever, and that
he knew of no other case in which Farnsworth had accepted an ap-
plicant who gave such history. This testimony of Ogilvie was not
contradicted and the Trial Examiner found and we find it to be
true.
Two days after Ogilvie rejected her Smith was examined by
Doctor Rising who gave her a statement as follows :
On physical examination of you today I find-you in very good,
condition in every respect. -
a+ Smith testified that in response to a statement she made that she "felt this was
because of union trouble ," Agnes Callahan , the nurse in the medical department, said "if
they don't want you to pass this physical examination , you don 't." The respondent ob-
jected to this testimony on the ground that Callahan was not a supervisory employee
and also moved that it be stricken because she was deceased at the time of the hearing
The Trial Examiner overruled the objection and denied the motion . We hereby affirm these
rulings. In view of, all the circumstances surrounding Smith's discharge, however, he was
of the opinion that the respondent was not motivated by an anti-union bias.
MONTGOMERY WARD & COMPANY 819
The fact that Rising himself did not appear as a witness detracts
from the force of the above statement , which is further weakened
by the fact that Smith admitted that Rising . had at times treated
her for hay fever.
Ogilvie's testimony that he was in no way influenced by the re-
spondent in rejecting Smith and Smith 's admission that she actually
did have hay fever, indicate that the reason for her discharge was
her failure to meet the respondent 's medical requirements. Under
the circumstances we find, as did the Trial Examiner, that , the re-
-spondent did not discharge Smith because of union membership or
activities . The allegations of the complaint with respect to her-will
accprdingly be dismissed.
As described above, the Union does not except to the recommenda-
tion of the Trial Examiner that the amended complaint , as amended,
be dismissed as to Lela Simmons and Wilma Bell. We have re-
viewed the evidence bearing upon their dismissals and concur in the
findings of the Trial Examiner. The findings are hereby affirmed
and our order will provide for a dismissal of the allegations of the
amended complaint , as amended, pertaining to them.
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
respondent described 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 has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and TO
take certain affirmative action designed to effectuate the policies of
the Act by restoring as nearly as possible the situation that existed
prior to the commission' of the unfair labor practices.
We have found that the respondent has interfered, with, restrained,
and coerced its employees in the exercise of the rights which the
Act guarantees to them. We shall, therefore, order the respondent
to cease. and desist from such practices.
We have found that the respondent, discriminatorily discharged
Charles Guyer, Grant C. Miller, George R. Frank, Arthur L. Rothe,
and John Horine, and discriminatorily delayed the reinstatement of
Pearl Aldridge. We are of the opinion that' reinstatement of the
employees discriminatorily discharged is essential to an effectuation
441843-42-voI. 31-53
820 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the purposes and policies of the Act and constitutes an appropriate
means of removing and avoiding the consequences of the respondent's
unfair labor practices as found in the Intermediate Report and
herein. The respondent contended at the hearing, with respect to
Rothe, that it has a rule that no relatives, including husband and
wife, are to be employed in its mail-order houses or retail stores and
that the rule has been strictly enforced since April 1939. It is clear,
however, that Rothe was not dismissed pursuant to this rule, but
because, of his union membership and activities. Rothe's discharge
constituted an unfair labor practice within the meaning of the Act
.and necessarily had the effect of discouraging membership in a labor
organization, thereby infringing upon the rights of the respondent's
employees to self-organization and collective bargaining. To restore.
the status quo and thus effectuate the policies of the Act requires
the reinstatement of Rothe and we shall so order.
In his Intermediate Report the Trial Examiner found that the
Union first filed charges, with the names of the employees alleged
to have been discriminated against therein, on March 13, 1940, that.
the most recent of these discriminations occurred more than 18 months
prior to 'the filing of the charges, and that the record did not show
any reason for this delay. He therefore recommended that the re-
spondent make whole each of these employees for any loss of, pay
he may have suffered from March 13, 1940, until, the date of the
,offer of reinstatement.' However, according to Board records, orig-
inal charges, referred to in the Union's exceptions, had been filed
in,behalf of these employees on July €i, 1938. These charges were
later withdrawn to be incorporated in the present charges. It is
thus, apparent that there was not such delay in the filing of charges
as to warrant any limitation on our award of back pay. We shall
order the respondent to offer the employees who were discrimina-
torily discharged immediate and full reinstatement to their former
or substantially equivalent positions,35 without prejudice to their
seniority and other rights and privileges, and to make them whole
for any loss of pay they have suffered by reason of their discharges,
by payment to each of them of a sum equal to the amount which
each would normally have earned as wages from the date of the
discharge of each to the date of the offer of reinstatement, less his
r 33 The respondent offered Miller about 10 days' temporary work in July 1938, but, as
Miller was then employed by the Works Progress Administration, he refused this offer
of temporary employment. As this offer of temporary employment did not represent the
equivalent of Miller's former employment , his refusal to accept it does not affect his
present rights as to reinstatement
MONTGOMERY WARD & COMPANY 821
net earnings 36 during such period. With respect to Pearl Aldridge,
whose reinstatement the respondent discriminatorily delayed, we
shall order the respondent to make her whole for any loss of pay
she has suffered by reason of such discriminatory delay in reinstate-
ment, by payment to her of a sum equal to the amount which she
would normally have earned as wages from February 1938 to
September 19. 1938, less her net earnings 37 during such period.
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case, the Board makes the following :
CONCLusIONs OF LAW
1. United Mail Order and Retail Employees of Kansas City, Local
131, affiliated with the United Retail and Wholesale Employees of
America, C. I. 0., is a labor organization, within the meaning of
Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Charles Guyer, Grant C. Miller, George R. Frank, Arthur
L. Rothe, John Horine, and Pearl Aldridge, thereby discouraging
membership in, a labor organization, the respondent has engaged in
and is engaging in unfair labor practices, within the meaning of
Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent 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 has not discriminated in regard to the hire and
tenure of employment of Lela Simmons, Wilma Bell, and Johanna
Smith, or any of them, within the meaning of Section 8 (1) or - (3)
of the Act
"By "net earnings " is meant earnings less expenses , such as for transportation, room
and board, incurred by an emplo3 ee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsenhere. See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 2590, 8 N L R B. 440. Monies re-
ceived for work performed upon Federal , State, county , municipal , or other work-relief
projects shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B.,
decided by United States Supieme Court, November 12. 1040
31 See footnote 36
11
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the basis of the above 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
respondent, Montgomery Ward & Company, Incorporated, its officers,
agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in United Mail Order and Retail
Employees of Kansas City, Local 131, affiliated with the United
Retail and Wholesale Employes of America, C. I. 0., or any other
labor organization of its employees, by discrimination in regard to
hire, tenure, terms, or conditions of employment;
(b) 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 purpose of collective bargaining or other
mutual- aid and protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to Charles Guyer, Grant C. Miller, George R.' Frank,
Arthur L. Rothe, and John Horine immediate and full reinstatement
to their former or substantially equivalent positions, without preju-
dice to their seniority and other rights and privileges;
(b) Make whole Charles Guyer, Grant C. Miller, George R. Frank,
Arthur L. Rothe, John Horine, and Pearl Aldridge, and each of
them, for any losses of pay they may have suffered by reason of the
respondent's discrimination in regard to their hire and tenure of em-
ployment, by payment to each of them of a sum of money equal to that
which- each .would normally have earned as wages during the period
from thedate of the respondent's discrimination against him to the
date of its offer of reinstatement, and in the case of Aldridge from
February 1938, the date the respondent's discriminatory delay in
reinstatement began, to September 19, 1938, the date of her reinstate-
ment, less his or her net earnings during said period;
(c) Post immediately in conspicuous places throughout its mail-
order house- and retail store in Kansas City, Missouri, and maintain
for a period of at least sixty (60) consecutive days from the date
of posting, notices to its employees stating : (1) that the respondent
will not engage in the conduct from which it is ordered to cease
and desist in paragraphs 1 (a) and (b) of this Order; (2) that the
respondent will take the affirmative action set forth in paragraphs
2 (a) and (b) of this Order; and (3) that the respondent's employees
MONTGOMERY WARD & COMPANY 823
are -free to become or remain members of United Mail Order and
Retail Employees of Kansas City, Local 131, and that the respondent
will not discriminate against any employee because of membership
or activity in that organization.
(d), Notify the Regional Director for the Seventeenth 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 complaint, in so far as it
alleges that the respondent discriminated in regard to the hire and
tenure of employment of Lela Simmons, Wilma Bell, and Johanna
Smith, within the meaning of Section 8 (1) and (3) of the Act, be,
and it hereby is, dismissed.
CHAIRMAN HARRY A. MILLis took no part in the consideration of the
above Supplemental Decision and Supplemental Order.