Montgomery Ward & Co., Inc.

National Labor Relations Board - Board DecisionsMay 16, 1963

142 N.L.R.B. 650 (N.L.R.B. 1963)

650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that it would not effectuate the policies of the Act to assert jurisdic- tion over local bus transportation companies, such as the Employer herein, which are essentially local in character and which operate primarily in aid of local communities and of the State in the field of education. Accordingly, the parties are advised under Section 102.103 of the Board's Rules and Regulations, Series 8, as amended, that, on the allegations present herein, the Board would not assert jurisdiction over the Employer's operations with respect to labor disputes cog- nizable under Sections 8, 9, and 10 of the Act. Montgomery Ward & Co., Incorporated and Fred W. Wallace Truck Drivers, Oil Drivers , Filling Station and Platform Work- ers' Union, Local 705, an affiliate of the International Brother- hood of Teamsters, Chauffeurs , Warehousemen and Helpers of America and Fred W. Wallace. Cases Nos. 13-CA-4774 and 13-CB-1193. May 16, 1963 DECISION AND ORDER On December 17, 1962, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain un- fair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, the Respondents filed ex- ceptions to the Intermediate Report together with supporting briefs. The General Counsel filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel' [Members Rodgers, Fanning, and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommen- dations 2 of the Trial Examiner. 1 The Respondent Employer 's request for oral argument before the Board is hereby denied as the record , the exceptions , and the briefs adequately present the issues and positions of the parties. 2 Member Rodgers , for the reasons set forth in his dissenting opinion in Isis Plumbing & Heating Co , 138 NLRB 716 , would not require the payment of interest on the backpay award provided for herein. 142 NLRB No. 77. MONTGOMERY WARD & CO., INCORPORATED 651 ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner.3 8 The Appendixes attached to the Intermediate Report are hereby modified by amending the next-to-the-last substantive paragraph of Appendix A, so that it reads as follows WE WILL offer to Fred W. Wallace immediate and full reinstatement to his former or substantially equivalent position and will, with Truck Drivers, Oil Drivers, Filling Station and Platform Workers' Union, Local 705, jointly and severally, make him whole for any loss of earnings suffered as a result of the discrimination against him. Appendix B is also amended so that the last substantive paragraph reads as follows: WE WILL, jointly and severally with Montgomery Ward & Co, Incorporated, make Fred W Wallace whole for any loss of pay he may have suffered as a result of our unlawful request that he be discharged. Appendix A is further modified by amending the note immediately below the signature line at the bottom of the notice as follows: NOTE -We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This matter came on to be heard before Trial Examiner Wallace E. Royster in Chicago, Illinois, on October 9, 1962,' upon the complaint of the General Counsel issued August 6, alleging that Montgomery Ward & Co., Incorporated, herein called the Respondent Employer or Wards, had discriminatorily discharged employee Fred W. Wallace in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, herein called the Act, and that Truck Drivers,. Oil Drivers, Filling Station and Platform Workers' Union, Local 705, an affiliate of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Respondent Union or Local 705, had, by causing Ward to dis- charge Wallace, violated Section 8(b)(1) (A) and (2) of the Act. Upon the entire record in the case, upon consideration of the brie s led by counsel, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT EMPLOYER Wards is an Illinois corporation with its principal office and place of business in Chicago, Illinois, operating retail stores and other facilites in many States of the United States. During the past year, its sales exceeded $500,000 in value and in the same period it shipped products valued in excess of that amount to States of the United States other than the State of Illinois. I find, as is conceded, that Wards is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE RESPONDENT UNION Local 705 is a labor organization within the meaning of Section 2(5) of the Act and since January 11 has been the certified collective-bargaining representative of Wards' employees in an appropriate unit. III. THE UNFAIR LABOR PRACTICES Only the operations at Wards' Hubbard Street terminal in Chicago is involved. After certification, Wards and Local 705, on January 19, entered into a collective- bargaining agreement. Physically, the agreement consists of a printed 18-page docu- ment entitled "Cartage Agreement," obviously designed for use by Local 705 in contracting with a number of employers. Incorporated in the agreement is a five- I All dates mentioned are In 1962 unless stated otherwise ,652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD page typed "rider" constituting a specific exception to the printed agreement cover- ing union security among other matters. In that respect the parties contracted as follows: Union Security SECTION 1. All employees covered by this Agreement, who are members of the Union on January 19, 1962, or who thereafter become members of the Union, shall remain members of the Union as a condition of continued employment. SEC. 2. New employees covered by this Agreement, hired on or after January 19, 1962, shall become and remain members of the Union after thirty (30) days from the date of employment in the bargaining unit or from the date of the execution of this Contract, whichever is later, as a condition of continued employment. Fred W. Wallace, who filed the charges in these cases, became Wards' employee in June 1961, and at no time prior to the events about to be set forth became a member of Local 705. Wallace testified that on January 29, the business agent of Local 705, John Navigato, told a group of Wards' employees, among them Wallace, that all new employees must join the Union after the expiration of 30 days. Upon being shown his prehearing affidavit, Wallace testified that on this occasion Navigato said that all employees had to join Local 705 at the expiration of 30 days and that he did not confine the requirement to those newly hired. On this point Navigato testified that he told the group that the requirement of obtaining membership as con- dition of employment had application to new employees . Inconsistently in a sworn statement given to counsel for Local 705 on March 30, Navigato said that he told Wallace on this occasion that he must join Local 705 after 30 days. Wallace, of course, was not a new employee. Mario Gismondo, one of the employees present on that occasion and not then a member of Local 705, testified that he did not recall what Navigato said but ventured the opinion that if Navigato had said that he must become a member by February 21 or lose his job he would have remem- bered it . On cross-examination by counsel for Local 705, in response to a leading -question, Wallace again said that on January 29 Navigato referred to new employees. The testimony of Wallace on this point is shifting and that of Navigato is incon- -istent with a statement made under oath about 6 months before the hearing. It is difficult to determine which of these witnesses, if either, has an accurate recollection of just what was said in reference to joining Local 705. The testimony of Gismondo is apparently based on no recollection at all and thus is of no aid. Both Gismondo and Wallace signed applications for membership on this occasion. The General Counsel argues that Wallace did so because he believed from what Navigato said must in order to retain his job. But even if it be true that Navigato said that all employees had to join , this was a requirement to be made effective in late February. It is clear that Navigato said nothing to the effect that employees must join before February 21. In these circumstances I do not find that Wallace applied for member- ship on January 29 because he believed that he was then compelled to do so. Because of the inconsistent and shifting testimony of both Wallace and Navigato on the point, I do not find that the latter on January 29 told Wallace that he must join Local 705 to remain in his employment. Sometime in mid-February, Wallace signed another application card upon the understanding that the one he had signed earlier had been mislaid. Also in Febru- ary, probably just before the end of the month, Navigato spoke to him about paying the initiation fee of $100. On this occasion, Navigato gave Wallace four self- addressed and stamped envelopes with the suggestion that Wallace might find it convenient to pay the amount in weekly installments. On March 9, a Friday, Navigato again spoke to Wallace about his failure to pay the initiation fee. According to Wallace, Navigato said that it was necessary for him to pay the $100 initiation fee and $24 back dues. Wallace answered that he would be glad to do so but that first he wanted to see the signed contract between Wards and Local 705. Navigato, Wallace testified, then became angry and said, "If you want to work you join the union." Navigato agreed in his testimony that he spoken to Wallace about March 9 concerning the initiation fee but, except in gen- eral terms, did not deny saying that if Wallace wanted to work he had to become a member of Local 705. I credit Wallace in respect to this conversation and find that Navigato expressed himself as Wallace testified. Also on March 9, Wards, on the basis of an application for membershin card signed by Wallace which also au- thorized checkoff of dues, withheld $24 from Wallace's nay renresenting dues to Local 705 for April, May, and June Wallace did not protest this deduction MONTGOMERY WARD & CO., INCORPORATED 653 On March 22, Local 705 wrote Wards: This is to inform you that employee Fred Wallace is not a member in good standing in the Union and has been in your employ over the thirty (30) days from the date our present contract was signed. Mr. Wallace has had ample opportunity to pay his initiation fee, but has refused to do so. We are, therefore , requesting that in accordance with the terms of our Col- lective Bargaining Agreement that you discharge Fred Wallace. The letter was received in Wards' personnel office on March 23 and on that date Wards wrote to Wallace: This will constitute formal notice of discharge under your Union Contract effective Friday March 23, 1962. You are being discharged from the employ of Montgomery Ward & Com- pany under direction of your Local Union for not complying with Article 2 Paragraph 1 of your Union Contract. We have been advised, in writing, by your Union that because you have not paid your initiation fee or your dues, you are not a member in good standing . Your Union Contract states that a condition of employment is being a member in good standing. Wallace reported for work on Monday, March 26, but was told that in compliance with the demand of Local 705 he was discharged. Wallace then had a conversa- tion with a Mr. McKenna, a Ward employee whose position is unclear, concern- ing the reasons for the discharge. Wallace told McKenna that he wanted to see the signed contract. McKenna said, according to Wallace, that he had not seen one. Wallace told McKenna that he had signed a checkoff authorization He did not claim that he had never joined Local 705. It is the position of counsel for the General Counsel that the union-security provisions in the contract between Ward and Local 705 had no application to a man in Wallace's status and that the applications for membership which he signed resulted from the coercive threat of Navigato that all employees had to become members of the Union as a condition of employment. Local 705 and Wards agree that when the contract was signed there was no obligation on the part of Wallace to become a member of Local 705. Local 705 argues that by signing an application for membership, Wallace then became obliged to pay the initiation fee and dues and that the sanctions of the union-security pro- vision were available to Local 705 to force this payment. The argument runs further that although Local 705 could not compel Wallace to become its mem- ber, it could nonetheless require him to pay the initiation fee and dues uniformly required of members? But this argument begs the question, central here, whether under the union-security provision of the contract Local 705 could compel Wallace to do anything It is clear enough that had Wallace become a member of Local 705 that he then could be required to maintain his membership as a condition of em- ployment. The application signed by Wallace in pertinent part reads: I, the undersigned, desire to become a member of the above Union and I herewith unequivocably authorize and direct said Local Union to represent me as the sole and exclusive bargaining agent, including handling of grievances, with my employer. Upon my becoming a member, I promise to abide by all rules and regulations prescribed in the International Constitution and Local By-Laws. [Emphasis supplied.] I think it to be obvious and I find that by signing such a card Wallace did no more, in respect to membership in Local 705, than to express a desire and willing- ness to become a member. It was stipulated at the hearing that all employees in the bargaining unit who pay dues are entitled to strike, death, and sick benefits and may vote on questions of contract ratification but not on internal union matters. This may indeed be a fair bargain for the dues paying employee who is not a member but it remains true that he is not a member. Wallace could not impose himself upon Local 705 as a member. Conversely, Local 705 could not impose the obligations of membership upon him without ex- 2 In support of this position Local 705 cites Union Starch and Refining Company (Grain Processors' Independent 'Union , Local No. 1), 87 NLRB 779. Because the Board in that decision had before It a conventional union-shop clause and came to the conclusion that the contracting union could not require more of affected employees than tenders of initia- tion fees and dues it does not follow that a union may always insist upon such tenders. First it must obtain agreement with the employer to impose union-shop conditions. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tending membership to him. I find that Wallace never became a member of Local 705 and that therefore Local 705 was not entitled under its union-security agree- ment to seek his discharge for not paying an initiation fee. By requesting and thus causing the discharge of Wallace I find that Local 705 engaged in unfair labor practices within the meaning of Section 8(b)(2) of the Act. By requesting and causing the discharge and by telling Wallace on March 9 that he must join Local 705 to keep his job, Local 705 restrained and coerced him in the exercise of rights guaranteed in Section 7 of the Act and thereby engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. Wards asserts that it was under no duty to investigate the request for Wallace'& discharge; that it was entitled to assume that it was lawful and appropriate. More specifically, Wards argues that it was under no sort of notice that Wallace was not a member of Local 705 and, indeed, because Wallace had signed a dues check- off authorization, it had reason to believe that Wallace was obliged under the union-security clause to pay the initiation fee. Wallace, of course never told Wards, that he was not a member of Local 705 and for that matter never protested to, Wards that his discharge was unlawful except by filing charges in this proceeding. I am unable to agree, however, that Wards, by accepting as true the assertions, made in the letter from Local 705 requesting the discharge of Wallace, absolved itself from liability. The letter said, truthfully, that: (1) Wallace was not a mem- ber in good standing; (2) he had been in the employ of Wards for more than 30 days following the execution of the contract; and (3) Wallace had not paid his initiation fee and had refused to do so. Wards would read into this letter that Wallace had been a member in good standing but had lost that status by failure and refusal to pay the initiation fee. Such an assertion is not in the letter and is not fairly inferable from its content. Moreover, Wards is chargeable with knowl- edge of what its own records reflect. In respect to Wallace they would show that he came to his employment more than 6 months before the contract was signed and thus was under no obligation to become a member of Local 705. This cir- cumstance at the very least should have stimulated Wards to inquire of Wallace to learn if he had ever attained membership but instead without inquiry of any sort the letter of discharge followed immediately upon receipt of the request for such action. There is some reason to believe that whoever prepared the discharge letter for Wards was unfamiliar with the provisions of the union security clause. The letter refers to the failure of Wallace to comply with "Article 2, Paragraph 1 of your Union Contract." That article is no part of the agreement between Wards and Local 705. Such an article in the printed contract was excised and the "rider" earlier mentioned substituted for it. The article mentioned in Wards' letter would have required Wallace or any employee to become a member of Local 705 after 30 days of employment. The letter ends with the observation "Your Union Con- tract States that a condition of employment is being a member in good standing." The phrase "member in good standing" is not used in the rider but, again, it appears in the excluded article. So a real possibility exists that Wards in responding to the request of Local 705 gave effect to a union-security provision that did not form a part of the contract. In any event I find that Wards had no reason to assume that Wallace had been a member of Local 705 and thereafter had defaulted in his obligations so as to justify his discharge under the existing union-security provision. Neither the letter from Local 705 nor any other communication from that organiza- tion or from Wallace said that he had become a member. The very fact that Wallace had not paid an initiation fee would tend to indicate that he had not attained membership. I find that by acceding to the request of Local 705 for the discharge of Wallace, Wards discriminated in regard to Wallace's tenure of employment to encourage membership in Local 705 and that Wards thereby engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. By the discharge Wards interfered with, restrained, and coerced Wallace in the exercise of rights guaranteed in Section 7 of the Act and thereby engaged in un- fair labor practices within the meaning of Section 8 (a) (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Wards and Local 705 set forth in section III, above, in con- nection with Wards' operations 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. MONTGOMERY WARD & CO., INCORPORATED V. THE REMEDY 655 Having found that Wards and Local 705 have engaged in certain unfair labor practices, it will be recommended that each cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As to Wards, it will be recommended that it offer to Wallace immediate rein- statement to his former or substantially equivalent position. As to Local 705, it will be recommended that it cease and desist from causing or attempting to cause Wards to discharge Wallace, or any other employee similarly situated, for failure to become a member of Local 705 or, as a nonmember, for failure to pay an initiation fee. It will also be recommended that Wards and Local 705 jointly and severally make Wallace whole for any loss of pay suffered by reason of his discharge by payment to him of all sums he would have earned had he continued in Wards' employment less his net earnings, if any, since March 26. Backpay shall be com- puted in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, with interest at the rate of 6 percent per annum computed quarterly. Upon the basis of the foregoing findings of fact , and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Wards is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 705 is a labor organization within the meaning of Section 2(5) of the Act. 3. By causing Wards to discriminate against Wallace in violation of Section 8(a) .(3) of the Act, Local 705 has engaged in unfair labor practices within the mean- ing of Section 8 (b) (2) of the Act. 4. By causing such discrimination and by telling Wallace that he had to become its member in order to work , Local 705 has restrained and coerced Wallace in the exercise of rights guaranteed in Section 7 of the Act and has thereby engaged in unfair labor practices within the meaning of Section 8(b) (1) (A ) of the Act. 5. By discharging Wallace on March 26 upon the request of Local 705, Wards has discriminated against Wallace in violation of Section 8(a)(3) of the Act. 6. By such discrimination Wards has interfered with , restrained , and coerced Wal- lace in the exercise of rights guaranteed in Section 7 of the Act and has thereby .engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, I recom- mend that: A. Montgomery Ward & Co., Incorporated , Chicago, Illinois , its officers , agents, -successors , and assigns , shall: 1. Cease and desist from: (a) Encouraging membership in Local 705 or in any other labor organization of its employees by discharging , or in any other manner discriminating in regard to tenure of employment. (b) In any like or related manner interfering with , restraining , or coercing em- ployees in the exercise of their rights to self-organization , to form labor organiza- tions, to join or assist any labor organization , 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 or protection , or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment , as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act. (a) Offer to Wallace immediate and full reinstatement to his former or substan- tially equivalent position , without prejudice to seniority or other rights and privileges. (b) Jointly and severally with Local 705 , make Wallace whole for any loss of pay he may have suffered by reason of the discrimination against him on March 26 -in the manner set forth in the section of this report entitled "The Remedy." 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to an analysis of the amount of backpay due. (d) Post at its Hubbard Street terminal in Chicago, Illinois, copies of the at- tached notice marked "Appendix A." 3 Copies of this notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being signed by a representative of Wards, be posted immediately upon receipt thereof, and be main- tained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Wards to ensure that said notices are not altered, defaced, or covered by any other material. (e) Post at the same place and under the same conditions as set forth in (d) above, as soon as forwarded by the Regional Director, copies of the attached notice marked "Appendix B." (f) Mail to the Regional Director for the Thirteenth Region signed copies of the attached notice marked "Appendix A" for posting by Local 705 at its business office in Chicago, Illinois, where notices to members are customarily posted. Copies of said notice, to be furnished by the Regional Director, shall, after being duly signed by a representative of Wards, be forthwith returned to the Regional Director for such posting. (g) Notify the Regional Director for the Thirteenth Region, in writing, within 20 days from the date of receipt of this Recommended Order, what steps have been taken in compliance .4 B. Truck Drivers, Oil Drivers, Filling Station and Platform Workers' Union, Local 705, an affiliate of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, representatives, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Causing or attempting to cause Wards to discriminate against Wallace or any other employee in violation of Section 8(a)(3) of the Act. (b) In any like or related manner or by telling Wallace or any employee similarly situated that he must join Local 705 in order to retain his employment restraining or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Notify Wards, in writing, with a copy to Wallace, that it requests the rein- statement of Wallace to the job from which he was discharged on March 26 without prejudice to seniority and other rights and privileges. (b) Jointly and severally with Wards make Wallace whole for any loss of pay he may have suffered by reason of the discrimination agamst him in the manner set forth in that section of this report entitled "The Remedy." (c) Post at its business office copies of the attached notice marked "Appendix B." 5 Copies of this notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by a representative of Local 705, be posted immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by Local 705 to ensure that said notices are not altered, defaced, or covered by any other material. (d) Post at the same places and under the same conditions as set forth in (c) above, as soon as they are forwarded by the Regional Director, copies of the attached notice marked "Appendix A." 8 In the event that this Recommended Order shall be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order " + In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith 6 See footnote 3, supra. MONTGOMERY WARD & CO., INCORPORATED 657 (e) Mail to the Regional Director for the Thirteenth Region signed copies of the attached notice marked "Appendix B" for posting by Wards at its Hubbard Street terminal in Chicago, Illinois, in all places where notices to employees are customarily posted. Copies of said notice, to be furnished by the Regional Director, shall, after being signed by representatives of Local 705, be forthwith returned to the Regional Director for such posting. (f) Notify the Regional Director for the Thirteenth Region, in writing, within 20 days from the date of receipt of this Recommended Order, what steps have been taken in compliance .6 9 See footnote 4, supra. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify you that: WE WILL NOT encourage membership in Truck Drivers, Oil Drivers, Filling Station and Platform Workers' Union, Local 705, or in any other labor organi- zation, by discharging employees or in any other manner discriminating against any employee in regard to tenure of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, or to refrain from engaging in any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as authorized in Section 8(a) (3) of the Act. WE WILL offer to Fred W. Wallace immediate and full reinstatement to his former or substantially equivalent position and make him whole for any loss of earnings suffered as a result of the discrimination against him. All our employees are free to become, remain, or to refrain from becoming or remaining members of the above-named Union, or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act, as amended. MONTGOMERY WARD & CO., INCORPORATED, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-Should the employee named above now be serving in the Armed Forces of the United States we will notify him of his right to full reinstatement upon applica- tion in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 176 West Adams Street, Chicago, Illinois, 60603, Telephone No. Central 6-9660, if they have any question concerning this notice or compliance with its provisions. APPENDIX B NOTICE TO ALL MEMBERS OF LOCAL 705 AND TO ALL EMPLOYEES OF MONTGOMERY WARD & CO., INCORPORATED, AT THE HUBBARD STREET TERMINAL IN CHICAGO, ILLINOIS Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify you that: WE WILL NOT cause or attempt to cause Montgomery Ward & Co., Incor- porated, to discriminate against Fred W. Wallace, or any other employee, in violation of Section 8(a) (3) of the Act. WE WILL NOT in any like or related manner, or by telling an employee that he must join our Union as a condition of employment, restrain or coerce em- ployees in the exercise of rights guaranteed by Section 7 of the Act, except to 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the extent that such rights may be affected by an agreement requiring member- ship in a labor organization as a condition of employment , as authorized by Section 8 ( a) (3) of the Act. WE WILL request Montgomery Ward & Co., Incorporated , to offer immediate and full reinstatement to Fred W . Wallace to his former or substantially equiv- alent position. WE WILL make Fred W . Wallace whole for any loss of pay he may have suffered as a result of our unlawful request that he be discharged. TRUCK DRIVERS, OIL DRIVERS , FILLING STATION AND PLATFORM WORKERS' UNION, LOCAL 705, AN AFFILIATE OF THE INTERNATIONAL BROTHER- HOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSE- MEN AND HELPERS OF AMERICA, Labor Organization. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date of posting , and must not be altered , defaced , or covered by any other material. Employees may communicate directly with the Board's Regional Office , 176 West Adams Street, Chicago , Illinois, 60603 , Telephone No. Central 6-9660, if they have any question concerning this notice or compliance with its provisions. Valley Transit Company, Inc. and Brotherhood of Railroad Trainmen , AFL-CIO . Case No. 23-CA-1486. May 16, 1963 DECISION AND ORDER On January 21, 1963, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board 1 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the ex- ceptions and brief and the entire record 2 in the case, and hereby adopts the findings , conclusions, and recommendations , insofar as they are consistent with this Decision and Order.' ' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom , Fanning, and Brown]. 2 On March 25, 1963, after the close of the hearing herein , the Board received from Respondent an affidavit of R. G. Olivo ; on April 12 , 1963, another affidavit was received from the General Counsel in which Olive disavowed the prior affidavit . The Board rejects both affidavits as neither constitutes probative evidence. 8 We do not condone,or adopt certain gratuitous comments contained in the Intermediate Report. Nevertheless, we find that such remarks do not support Respondent 's allegation of bias and prejudice on the part of the Trial Examiner . We have made an independent review and analysis of the record herein and are satisfied that the findings and conclu- sions of the Trial Examiner which we have adopted, including his credibility resolutions, are fully supported by the evidence . Accordingly , we deny Respondent 's request to argue this matter orally before the Board. 142 NLRB No. 74.