Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

Jan 29, 1965

150 N.L.R.B. 1374 (N.L.R.B. 1965)

1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Montgomery Ward & Co., Incorporated and Airline Supply Tech-
nicians Local Union No . 172, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Helpers of America.
Case No. 12-CA-2800. January 29, 1965
DECISION AND ORDER
On September 18, 1964, Trial Examiner John P. von Rohr issued
his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found that the
Respondent had not engaged in certain other unfair labor practices,
and recommended that these allegations of the complaint be dis-
missed. Thereafter, the General Counsel filed exceptions to the
Trial Examiner's Decision and a supporting brief. Respondent
filed a brief in opposition to the General Counsel's exceptions; and
the Charging Party filed a brief in response to Respondent's brief.
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 [Chairman McCulloch and
Members Brown and Jenkins].
The Board has reviewed the ruings of the Trial Examiner made
at the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire rec-
ord in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, as modified below.-
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts, as
its Order, the Order recommended by the Trial Examiner with the
following addition, and orders that Respondent, Montgomery Ward
& Co., Incorporated, its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's Recommended
Order :
1 We find merit in the General Counsel 's contention that the Trial Examiner erred
in finding that Croots was not a supervisor within the meaning of the Act. A
preponderance of the evidence in the record shows that Croots was Respondent 's repair
service manager and that in fulfilling the duties and responsibilities of that position,
Croots had authority to hire and fire employees under his supervision. In view of
Croots' status as a supervisor , we further find that Croots' interrogation of employee
Richardson concerning employees' union activities constituted a violation of Sec-
tion 8 (a) (1) of the Act.
150 NLRB No. 130.
MONTGOMERY WARD & CO., INCORPORATED 1375
1. Add the following paragraph as paragraph 1(b), and reletter
the present paragraph 1(b) as paragraph 1(c).
"(b) Interrogating its employees concerning their union member-
ship, activities, or desires in a manner constituting restraint and
coercion within the meaning of the Act."
2. Add the following paragraph as the second indented paragraph
in the notice :
WE WILL NOT interrogate our employees concerning their
membership, activities, or desires in a manner constituting re-
straint and coercion within the meaning of the Act.
3. The address of Regional Office 13 given in the Appendix
attached to the Trial Examiner's Decision is amended to read:
500 Zack Street, Tampa, Florida, Telephone No. 228-7711.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge duly filed; the General Counsel for the National Labor Relations
Board , by the Regional Director for Region 12 (Tampa, Florida ), issued a complaint
on February 14, 1964, against Montgomery Ward & Co., Incorporated , herein called
the Respondent or the Company, alleging that it had engaged in certain unfair labor
practices affecting commerce within the meaning of Section 8(a)(1) of the National
Labor Relations Act, as amended , 61 Stat. 136, herein called the Act. The Respond-
ent's answer denies the allegations of unlawful conduct alleged in the complaint.
Pursuant to notice , a hearing was held before Trial Examiner John P . von Rohr in
Melbourne , Florida, on April 6 and 7 , 1964 . All parties were represented by counsel
and were afforded full opportunity to adduce evidence , to examine and cross -examine
witnesses , and to file briefs . Briefs have been received from the General Counsel
and from the Respondent and they have been carefully considered.'
Upon the entire record in this case, and from my observation of the witnesses, I
hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
The Respondent is a corporation engaged in the sale and distribution of merchan-
dise throughout the United States through the medium of mail-order houses and
retail stores. The sole facility involved in this proceeding is Respondent 's retail store
located in Melbourne , Florida. During the fiscal year ending February 1, 1963, the
Respondent through its mail -order houses and retail stores, did a gross annual business
in excess of $500,000. During the same period , goods and materials valued in excess
of $50 ,000 were shipped to its Melbourne , Florida, store directly from points and
places located outside the State of Florida . Respondent concedes , and I find, that it
is engaged in commerce within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Airline Supply Technicians Local Union No. 172 , International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Helpers of America , is a labor organization
within the meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
At issue in this case is whether the Respondent, by various acts and conduct spe-
cifically alleged in the complaint, violated Section 8(a)(1) of the Act during the
Union's drive to organize its store and warehouse in Melbourne , Florida, during the fall
1 The General Counsel ' s motion to correct the record, which is dated May 13, 1964,
is hereby granted. It has been placed in the formal exhibit file.
775-692-65-vol. 154--88
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of 1963 . Although the Union held its first organizational meeting on August 29,
1963 ,2 uncontroverted evidence reflects that it was not until the first week in October,
when Respondent discovered union ' leaflets on its premises , that Respondent first
became aware of the organizational activities that were taking place among its
employees.3
It may be stated at the outset that Respondent opposed the Union , this being particu-
larly evidenced by its speeches to employees in latter November and early December,
as will be discussed hereinafter . This background of opposition to the Union is, of
course, a factor which I have taken into consideration in assessing the various acts and
conduct which are alleged to have infringed upon the employees ' rights guaranteed
under Section 7 of the Act . Additionally , while I find it more convenient to consider
each of the alleged violations under the separate paragraphs , which appear hereinafter,
I have not considered them solely as independent incidents but I have evaluated them
in the context of Respondent 's entire course of conduct during the period of the
organizational campaign.
A. Alleged surveillance of union activity
The complaint alleges that Respondent, "did by its officers, agents and department
managers engage in surveillance over the union activity of employees and did attempt
to learn the identity of employees who were active in support of the Union " In
support of this allegation, two former supervisors of the Respondent, Cora Cable and
Margaret Frye,4 gave generalized testimony to the effect that in December a respond-
ent attorney from Baltimore addressed a meeting of supervisors and told them, among
other things, that they were to report to management any union activity which they
observed taking place in the store. Other than the foregoing, which I have sum-
marized in a light most favorable to the, General Counsel, the testimony of these
witnesses was quite vague and uncertain as to what was specifically said. There was
nothing in their testimony, however, to indicate that they were told to "spy" upon the
employees or that they were to make any special effort to ascertain whether union
activity was taking place among the employees. Indeed, Frye conceded that she was
never instructed to watch particular individuals as to their union activity, her testimony
being that, "within the store ... if we heard anything to report it." Further, Frye
conceded that at this meeting the supervisors were told not to talk to employees about
the Union and that they were instructed to keep "hands off" the "union problem."
I conclude that the foregoing testimony does not support the allegation that
Respondent engaged in "surveillance" either by definition or as the term is generally
used in Board parlance.5 In any event, whatever the Respondent may have intended
by the foregoing instructions, there is no evidence to show that Respondent in fact
engaged in surveillance. Accordingly, insofar as the complaint alleges that Respond-
ent engaged in unlawful surveillance of employees' union activity, I shall recommend
that this allegation be dismissed.6
B. Personnel surveys
In September 1963, Respondent, at its Melbourne facility, utilized a form desig-
nated as "Retail Store Employee Appraisal." This form provides spaces for evaluation
of each employee's "General Performance," with the specific items listed as follows-
volume of work produced; quality of work produced; knowledge of job; cooperation
a All dates hereinafter, unless otherwise noted, refer to the year 1963
6 The Union filed a petition in Case No 12-RC-1830 on Novemebr 6. An amended
petition was filed on November 19. No election had been scheduled as of the date of
the hearing.
* Cable, a supervisor in the candy department, left the' Respondent in early March 1964
Frye, a supervisor in the stock control department, left the Company on March 2, 1964
6 See Donald L. Trettenero, et al , d/b/a Trettenero Sand & Gravel Co , 129 NLRB
610, where the Board commented as follows:
We do not agree that Respondent's questioning of employees concerning the union
activities of other employees constituted surveillance. There is no evidence that
the Respondent attempted to infiltrate employee meetings, employed spy techniques,
or clandestinely watched employees' union activities
O As hereinafter noted, the evidence does not support the complaint's allegation that
Respondent unlawfully interrogated its employees. But assuming arguendo that it did,
the Board has never held that interrogation of employees which is typically violative
of Section 8(a) (1) of the Act is tantamount to surveillance Trettenero Sand & Gravel
Co., supra; Bear Brand Roofing, Inc., 134 NLRB 1233, 1243.
MONTGOMERY WARD & CO., INCORPORATED 1377
and dependability; attendance and punctuality; ability to perform other jobs; judgment;
personal characteristics. After each such item, the form provides for five degrees of
rating (from the highest, "outstanding" to the lowest, "unsatisfactory.") The proce-
dure is that each employee is to appraise himself by filling out the form in accordance
with his own judgment. The next step is for each employee's respective supervisor to
fill out identical spaces on the same form, thus giving his evaluation as to the
employee's performance for each subject listed. It is undisputed that the use of these
forms is companywide procedure and has been in use for, many years.7 Its principal
purpose is to support merit increase recommendations and endorsement of various
other personnel actions.
In November 1963, ' Mrs. E. G. Ward, a personnel field specialist assigned to
Respondent's eastern regional office in Baltimore, Maryland, conducted a so-called
"Retail Store Attitude Survey" among the employees of the Melbourne store. During
the same week Mrs. Ward also conducted these surveys in Respondent's stores at
Clearwater and Tampa, 'Florida.s In explaining the procedure followed, Mrs. Ward
testified as follows:
I will go into a store, ask that meetings be scheduled, and it is a very brief presen-
tation, it is not mandatory that employees participate. I ask their assistance
in completing a survey, and we ask that they do not identify themselves personally.
After the surveys are completed, it is deposited in a sealed box, and I take these
back to Baltimore with me for tabulation ... they are not returned to the store.
[Emphasis supplied.]
The survey is actually conducted by means of a questionnaire which the employees
are requested to complete by checking appropriate boxes. The form contains a total
of 60 questions, 53 of which concern the employees' impressions and opinions regard-
ing general working conditions and 7 of which specifically involve employee opinion
concerning management of the local store. The employees are asked to check in the
appropriate box I of 5 degrees of rating, such as from "extremely satisfactory" to "very
unsatisfactory." Representative examples of the questions asked are noted below.9
As to the purpose of the employee attitude survey, Mrs. Ward testified, "It is to get the
feeling, the attitude of the employees on how they feel about their job, the company,
and the particular store that they are working in. And if there are any problem areas
then of course we want to correct or improve the problem areas."
The complaint alleges, simply, that Respondent violated Section 8(a)(1) of the
Act "by requiring its employees to execute `self appraisal forms' and `attitude survey
forms.' " As to his theory of this alleged violation, the General Counsel stated in his
brief only as follows: "We think all the approximately 60 questions of Respondent's
Attitude Survey bear a relation to wages, hours and working conditions, and that the
requiring of employees to bare their personal opinions at a time when they are con-
sidering selecting a union to represent them on these matters necessarily inhibits them
in that selection." 10 While I am not sure just what the General Counsel has in mind
by his contention that the questionnaire has the effect of "inhibiting" the employees, I
reject as untenable the 'General Counsel's argument that the Respondent violated
Section 8 (a) (1) of the Act by use of either the employee appraisal procedure or its
survey of employee attitudes. In fact, the evidence pertaining to the allegation that
Respondent's use of the procedures in question was designed for the purpose of
stifling the union activities of the employees is quite to the contrary. Thus, as to the
employee appraisal forms, the unrefuted evidence discloses that Respondent made
use of these before it had any knowledge of organizational activity taking place at
its store.11 As to the attitude survey, the evidence reflects that this, too, was conducted
' The latest revision of this form was made on March 15, 1961. ( Respondent's
Exhibit No. 3 )
8 Mrs. Ward's territory covers 17 eastern seaboard States from Maine to Florida.
9 Do you like your present work' Are you paid fairly for the work you do' How
satisfactory are your working conditions ? Are your associates congenial? Are you advised
of the policies and regulations of the store' Do you feel free to discuss your problems
with your supervisor? How is the lighting in your department? How satisfactory is the
space in which you work? Are employees in your department treated fairly? Are you
criticized within the hearing of others' Are you pleased with the straight salary plan?
Are corrections given you in a helpful manner by store management'
10 Presumably the General Counsel intends this theory to be also applicable to the
employee appraisal survey.
"As heretofore noted, these forms were utilized in September whereas Respondent
did not learn of the union activity until October.
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ih accordance with Respondent's customary personnel practices.12 Quite apart from
all the foregoing, it may be unequivocally stated that none of the questions in either
survey so much as remotely touched upon the subject of the employees' union activities,
preferences, or wishes. Whatever the General Counsel's theory of this aspect of the
case, I am unable to see where Resopndent' s personnel practices, as utilized here, are
in any way proscribed by the Act. Accordingly, I shall recommend that the allega-
tions of the complaint, insofar as they are pertinent here, be dismissed.
C. Alleged interference by supervisors
Curtis Humphrey, a former warehouse employee, testified that in August he over-
heard a conversation between Carlton Fannin, the shipping-receiving supervisor, and
employee Ed Famslader. Concerning this conversation, Humphrey testified, "He
[Fannin] asked Ed to come over to the marking department, that he had something
to talk to him. And he asked Ed who was trying to form the union, and who was
handing out the pamphlets, who was signing the people up, who was talking to him
on the side, and he asked him if Hank Waldin or anybody associated with Hank was
doing it." So far Humphrey's testimony. Famslader, the employee directly involved,
did not testify. Fannin flatly denied that he had any such conversation with Famslader
or that he ever talked to this employee about the Union. From my observation of the
witnesses, I credit Fannin over Humphrey. Fannin was first called by the General
Counsel and was queried as to matters which were adverse to Respondent's interests.
As a supervisor, I was impressed by the forthright manner in which he answered all
questions thus put to him. As to Humphrey, I was not impressed by him as a witness
and I note that he had an altercation with Fannin at the time he left Respondent's
employ. In addition to the foregoing, I note that Humphrey placed the alleged con-
versation as having occurred "in August," this far from the time when any real organi-
zational activity took place or when any literature was distributed.13 Accordingly, I
shall recommend that this incident , as it alleged in the complaint, be dismissed.
I set forth the next incident only because a specific allegation in the complaint
compels me to do so. It seems that on some date, which was not identified, employees
Charles Richardson and Carson Jenkins became involved in an argument in a bowling
alley when Carson 'called Henderson, "Hoffa, Jr." As the argument proceeded
Roland Gibbs, a supervisor who apparently bowled on the same team , finally turned
and told the two employees to "shut up" about their arguing . Without further com-
ment, I shall recommend that this trivial matter, which' the complaint alleges to be an
unfair labor practice, be dismissed.
At the outset of the hearing, the General Counsel amended the complaint by
adding, inter alia, an allegation that one Mr. Croots interrogated an employee con-
cerning certain union activities. This amendment, which the Respondent did not
admit, included the allegation that Croots was the "repair service manager" and that
as such he was a supervisor within the meaning of Section 2(11) of the Act. The
sole testimony concerning Croots' status came from employee Charles Richardson
who testified only that Croots was his "supervisor in repair service." I agree with the
Respondent that this testimony, standing alone, does not establish that Croots was a
supervisor within the meaning of the Act. As to this issue , it is well settled that such
testimony can be regarded only as an opinion or conclusion of the witness. Accord-
ingly, and since the record contains no probative evidence as to Croots ' actual super-
visory authority, I am impelled to find that the General Counsel has not sustained his
burden of proof as to this allegation and I shall recommend that it be dismissed 14
D. The merit increases
The complaint alleges that Respondent violated Section 8(a)(1) of the Act by
granting merit increases to its employees during the months of October and November
11963. There is no dispute as to the fact of such merit increases , Respondent's records
showing that 49 employees were granted merit increases in October and that 31
employees received them in November. Respondent personnel specialist E. G. Ward
testified that a purpose of the employee appraisal survey, which, as heretofore noted,
was conducted in September, was to provide a basis for recommending employee
merit increases where warranted. As to the timing of the merit increases after the
12 Not only was this procedure utilized during the same week in other stores in the
Florida area, but the proven nondiscriminatory use of the appraisal tends to reflect that
its use of the attitude survey likewise was made during the normal course of business.
13 The first union meeting did not take place until August 29 The handbills, to which
Humphrey made reference, did not appear until October.
14 It may be noted that Respondent conceded the supervisory status of the other super-
visors involved in this proceeding.
MONTGOMERY WARD & CO., INCORPORATED 1379
completion of such survey, Ward testified only that, "It is not necessary for it to be
immediate. It could be within a week, two weeks, or up to three'months following
the appraisal." Thus the extent of Respondent's defense to the allegation in question.
Under all the circumstances of this case, it is my conclusion that as to this allegation
the General Counsel has established a prima facie case which the Respondent has
failed to satisfactorily rebut. Thus, the Respondent offered no evidence to show that
it had promised the employees that they would receive or be eligible for merit increases
at the time they were hired. Moreover, whatever Respondent's policy as to the
granting of such increases, the testimony of Ward, which is stated above, indicates
that it was flexible and that Respondent reserved a wide latitude as to when they
could be made effective. In this connection, Respondent's records show that some
merit increases were made in the 2 months prior to its becoming aware of the union
activity at its store. However, these were considerably less in number, only 5 such
increases having been granted in August and 13 in September. As noted elsewhere in
this Decision, the Respondent was strongly opposed to the Union's campaign to orga-
nize the employees and it openly combated such efforts in its speeches to employees
during the months of November and December. As noted hereinafter, during the
same month Respondent granted increased overtime benefits to its employees. Upon
the entire record, I am convinced and find that a purpose in timing the numerous
merit increases which were made during the months of October and November was
to discourage organization among the employees in violation of Section 8(a)(1) of
the Act.15
E. Overtime benefits
The complaint alleges that Respondent made unlawful use of overtime benefits
in two different respects. The first is that Respondent "created substantial amounts
of overtime work during the months of October,. November and December, 1963."
It is undisputed that the table below reflects the number of overtime hours worked
for the months indicated:
Overtime hours
April --------------------- 5, 653 September --------------- ----- 414
May--------------------- 2, 905 October ------- ----------------- 890
June--------------------- 1, 894 November --------------------- 714
July --------------------- 1, 855 December--------------------- 18237
August------------------- 1, 647
As indicated above, it is clear that Respondent always required overtime and that
the number of hours so worked was greatest during the period before any organiza-
tional activity occurred.17 While the pattern seems to be somewhat interrupted in
October, I fail to see where the above data supports the General Counsel's allegation
that Respondent "created substantial amounts of overtime" during the 3-month orga-
nizational period alleged in the complaint. Accordingly, I shall recommend that this
allegation be dismissed. In making this determination, I have not overlooked an inci-
dent on which General Counsel apparently, to some extent, relies: Frank Kenward,
a driver for the Respondent, testified that on December 5, 1963, he accompanied
Supervisor Carlton Fannin to Respondent's retail store in Orlando, Florida. On this
occasion, Kenward testified, he overheard a conversation between Fannin and the
supervisor of shipping and receiving of the Orlando store. According to Kenward,
when Fannin was asked by the Orlando supervisor if the Melbourne store was receiv-
ing any overtime, Fannin replied, "Yes, but the only reason we were is the union was
trying to get in." Fannin conceded that he had a conversation with the Orlando
supervisor to this effect, but testified that his remark was made in a jocular manner.
However, I credit the testimony of Kenward that he construed the conversation to be a
serious one. Although I find that this statement of Fannin's in the presence of
employee Kenward constituted a violation of Section 8(a) (1) of the Act, this incident
falls far short of proving that Respondent, for the purpose of defeating the Union,
granted substantial amounts of overtime during the months in question 18
The complaint further alleges that "on or about November 7, 1963 [Respondent]
instituted a change in its overtime policy, increasing the overtime benefits of employees
by the payment of overtime for all hours worked in excess of 40 in any given week"
15 N.L R B v Exchange Parts Company, 375 U S 405; N.L R B v. Douglas & Lomason
Co., 333 P. 2d 510 (CA. 8). LeRoy Stovesand Motor Company, 127 NLRB 19, cited
by the Respondent, is clearly distinguishable from the present case.
10 To fiscal week ending December 4
17 The complement of employees gradually dropped from 352 In April to 206 In
December.
"This is obvious from the fact that overtime had been in effect at the Melbourne
store long before the advent of the Union.
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to this allegation, it is undisputed that from the time of the store open-
ing in March until September 3, the Respondent paid the employees straight time for
overtime in excess of 40 hours. On the latter date, the Respondent initiated overtime
pay for hours worked in excess of 44, this pursuant to requirements of the Fair Labor
Standards Act which became effective on that date. On or about November 7,
Respondent implemented the foregoing by initiating the payment of time and a half
overtime for all hours worked in excess of 40.
In explanation of the increased overtime compensation, Dudley said that the store
"operational plan" was designed to begin with'straight time (for overtime) and to
remain on this basis until a normal employee complement was reached and until
there was a "development of efficient and well-qualified people to run the store."
When this stage was reached, according to Dudley, "we would then drop down to
what is considered as a normal work week with an overtime practice similar to
Orlando, Jacksonville, St. Pete and Tampa." Dudley also testified that in view of the
union activities which were taking place at the, store, he consulted with Stephen
Conhain, Respondent's Baltimore attorney, on November 6 concerning the legality
of instituting the increased overtime rates at that time. Conhain's advice was to
make the change without further delay.
While Dudley's explanation seems plausible on its face, I am persuaded, under all
of the circumstances of this case, that at least a reason for Respondent's inaugurating
an increase in the overtime rate in November 1963, was to influence the employees
not to accept the Union, i.e., that they could obtain increased benefits from their
employer without resorting to unionization. As in the case of the merit increases,
Respondent offered no evidence to show that the employees were ever advised of any
company policy under which they could expect an increase in overtime pay under
the circumstances described by Dudley. To the contrary, this unexpected benefit
appears to have come to the employees as quite a surprise.19 Further, it was con-
ceded that company policy, whatever it was, did not fix any specific time as to when
increased overtime benefits be instituted after the opening of a new store. Thus,
with respect to the granting of such benefits, Company Attorney Conhain testified
that, "It could be six months after an opening . . . there is no time limit." 20 As
opposed to the foregoing, I do not think it coincidental that it was during November
that Respondent openly opposed the organizational efforts by making antiunion
speeches to its employees while at the same time granting the large number of merit
increases which I have heretofore found unlawful. Accordingly, and in view of the
foregoing, I find that Respondent's granting of increased overtime benefits during
the organizational campaign was violative of Section 8(a)( I) of the Act.
E. The allegation that Respondent unlawfully refused to grant the Union equal
time to address the employees; related alleged violations of Section 8(a) (1)
The complaint alleges that the Respondent violated Section 8(a)(1) of the Act
when it refused to grant the Union equal time to address the employees after it had
"required the presence of employees at antiunion meetings which were held on com-
pany time and property."
The parties stipulated that Store Manager Dudley made noncoercive antiunion
speeches to the employees on the following dates: November 16, 17, 18; December 3
and 7. However, the Respondent did not make five separate speeches to all employees
on the dates indicated since various shifts of employees were addressed on different
dates 21 While I do not regard it as decisive of the issue presented, there is
some question as to whether Respondent required the employees to attend the meetings
at which Dudley spoke. Thus, although Dudley testified that it was up to the
employees to decide whether they should attend or not, the record reveals that notifi-
cation to the employees was made the day before over the loudspeaker system, the
announcement merely stating that there would be a meeting•of employees at a desig-
nated hour. However, it is undisputed that the employees were paid for the time
they attended the speeches.22
19 The announcement of the increased overtime was noted in an accompanying note
which was placed in the employees' pay envelope (Testimony of Stephen Conhain.)
91 Conhain testified that this was explained to him by Dudley
21 While the record is not clear on the point, it does appear that Dudley spoke to each
shift on two occasions
r" The speeches were made just prior to the beginning of each shift Dudley testified
that the employees normally reported to work anywhere from 30 to 5 minutes before their
shifts started.
The record does not reveal whether all of the employees in fact attended the meetings.
MONTGOMERY WARD & CO., INCORPORATED 1381
On December 3, Union President Casella sent the Respondent a telegram in which
he referred to the company meetings wherein the Union had been made the."subject
of speeches" and in which he requested "an opportunity to address the employees
consistent with the Board's May Department Store doctrine." No reply to the fore-
going was made by the Respondent and the Union was not granted the opportunity to
address the employees as it requested.
Store Manager Dudley testified that the rule governing solicitation at the Melbourne
store is set forth in a document entitled "Labor Policy." This document also contains
a general set of instructions which are designed to govern supervisors with respect to
Respondent's labor policy. ' The no-solicitation rule, which was never posted or
otherwise generally publicized to the employees at the Melbourne store, provides,as
follows: 23
- 6. Distribution of union literature and solicitation of union membership is
permissible on company property under the following conditions only:
a. Only employees of Wards shall be permitted on any part of the company's
property not open to the general public. While in departments open to the public,
non-employee union representatives must not disturb the operation of the busi-
ness. They must conduct themselves in an orderly manner; they may not inter-
fere with the work of any employee; they may not distribute literature; they may
not make speeches or hold meetings.
b. No employee shall distribute union literature or solicit union memberships
on company time, or while the employees to whom the literature is being dis-
tributed or whose membership is being solicited are on company time.
c. Employees may solicit union memberships (including distribution of union
literature) on company property so long as: (a) the employees, both those
soliciting and those being solicited, are on their own time; and (b) the solicitation
is conducted in a quiet and orderly manner and does not interfere with the
operation of the company's business. Meetings or speeches are not to be per-
mitted, and solicitation is forbidden which results in disturbing or interfering
with the work or function of any employee or department, or which is detri-
mental to maintaining the premises in a clean and attractive condition.
In contending that the Respondent violated Section 8 (a) (1) of the Act by refusing
to grant the Union an opportunity to address its employees on Respondent's time and
premises, the General Counsel not only relies on the Board' s rule as set forth in
The May Department Stores Company, d/b/a,The May Company, 136 NLRB 797,
but, indeed, he seeks an extension of that rule to cover the admittedly different situa-
tion which is presented in the instant case. In the May case, the employer maintained
a broad but privileged no-solicitation rule which included a prohibition. of union
solicitation in selling areas during the employees' working and nonworking time. In
finding that the employer violated the Act when, in the face of such no-solicitation
rule, it made noncoercive' antiunion speeches to employees while refusing the Union's
request for an opportunity-to reply, the Board held that the case was "squarely con-
trolled" by the Bonwit Teller 24 decision, and cited the Bonwit rule as follows:
The Board, however, has allowed retail, department stores the privilege of
prohibiting all solicitation within the selling areas of the store during both work-
ing and non-working hours, [citation and footnote omitted]. Bonwit Teller chose
to avail itself of that privilege and, having done so, was in our opinion required
to abstain from campaigning against the Union on the same premises to which
the Union was denied access; if it should be otherwise, the practical advantage
to the employer who was opposed to' unionization would constitute a serious
interference with the right of his employees to organize.
There is, however, an important difference in the so-called no-solicitation rule
involved in the instant case from that of the privileged no-solicitation rules involved
in the May and Bonwit Teller cases. Thus, in each of the latter cases, the rule pro-
hibited, inter alia, union solicitation in the selling areas of the store during the
employees' working and nonworking time. As to Respondent's rule in this case, wnich
is set forth above, it is'clear that there is no prohibition against union solicitation on
the premises, the selling areas included, during the employees' nonworking time.
xi The General Counsel also introduced in evidence a portion of Respondent's Standard
Procedure Store Manual which contains a similar, although differently worded, no-
solicitation rule. However, I do not deem this rule material to the case since Dudley
testified, and there is no evidence to the contrary, that this rule had never been made
applicable to the Melbourne store.
u Bonwit Teller, Inc., 96 NLRB 608, enfd. 197 F. 2d 640 (C A. 2), cert. denied 345
U.S. 905.
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since the Respondent , then, did not avail itself of the privilege of prohibiting solicita-
tion within the selling areas of the store, a factor which appears to have been the
decisive one in the cases cited , I can but conclude that the Board 's rule is not applicable
to the present case and I shall recommend that this allegation be dismissed . In reach-
ing this conclusion I am not unmindful of evidence offered by the General Counsel
which reflects that the Union is restricted from handbilling the employees as they
leave the store . Thus, an ordinance of the city of Melbourne prohibits , inter alia,
the distribution of handbills on city streets , this including the Brevard Mall Properties
on which Respondent 's store is located . On one occasion the mall custodian; at the
Respondent 's behest , ordered a union representative to cease distributing union litera-
ture at the employee entrance to the store25 However , I am not persuaded that this
factor is justification for the further extension of the Board 's rule which the General
Counsel seeks here. The Respondent 's solicitation rule, as we have seen , does not
prohibit the employees from engaging in union solicitation anywhere on the premises
as long as they do so on nonworking time. That the union supporters actively engaged
in such activities is amply demonstrated by the testimony of Union President Samuel
Casella who said that 4 to 5 employees engaged in solicitation of other employees and
distributed union cards within Respondent 's store . There is no evidence whatsoever
to show that Respondent imposed any restrictions in addition to those set forth in
its printed rule.26
Apart from the issue presented above , the complaint alleges that Respondent inde-
pendently violated Section 8(a) (1) in the following instances:
(1) That on November 13, 1963 , Dudley read to an employee a portion of the
no-solicitation rule "in a manner calculated to warn the employee that distribution of
literature or solicitation of the Union was not permitted in the store." The evidence
pertaining to this allegation is that on or about the date indicated , employee Ernest
Nail was called to Dudley's office where Dudley read to him that portion of Respond-
ent's solicitation rule which states that there shall be no union solicitation on company
time.27 Dudley credibly testified that he took this action because he had received
reports that employees were soliciting during working hours. While the General
Counsel conceded at the hearing that there was nothing coercive in Dudley's reading
this rule to the employee , it is apparently his position that Respondent was under
some obligation to advise the employee the circumstances under which union solicita-
tion was permissible and that its failure to do so was somehow violative of the Act.
If my understanding of the General Counsel 's position is correct , I think it too far-
fetched to require any further comment. I will state , however, that surely any
employee of normal intelligence would understand that the rule stood for exactly what
it said , including the fact that it did not prohibit solicitation during nonworking time.
Accordingly, I shall recommend that this allegation be dismissed.
(2) The second allegation pertains to an incident where Dudley called employee
Charles Richardson into his office and ' read to him, also, the portion of the
no-solicitation rule indicated above.28 The complaint alleges that on this occasion
Dudley told Richardson "that he was not to talk to employees about the Union, that
such discussions were against company rules." On direct examination , Richardson
testified that Dudley told him that , "We want to talk to you about this union , not to be
discussing it with other employees ." 29 However , when queried further as to what
Dudley told him about not soliciting , Richardson testified , "To hand out literature or
solicit for the union on company time, and then on your own time, it is what you do
is your affair . . . don't do anything on company time, do it on your own time."
[Emphasis supplied .] Clearly, Richardson 's testimony does not support the afore-
mentioned allegation in the complaint and I shall "recommend that it be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in connec-
tion with the opefations of Respondent as described in section I, above , have a close,
25 The employee entrance is at the rear of the store leading directly to a parking lot
which is located on the mall. The incident in question took place at 8:30 p.m. (the
store's closing time ) on January 15, 1964.
28 In this respect , this case is factually distinguishable from Montgomery Ward & Co.,
Inc., 145 NLRB 846, cited by the General Counsel.
n There Is no - conflict in the testimony between Nail and Dudley as to this Incident.
I credit Dudley 's testimony that at this time he specifically read to Nail paragraph 6(b)
of the no-solicitation rule, which is hereinbefore set forth.
I credit Dudley's testimony that he called Richardson into his office on the same
day, and for the same reason , as employee Nail.
21 Ronald Seitz , the operations manager, was present while Dudley spoke to Richard-
son and Nail but it does not appear that he spoke during either of the brief conversations.
MONTGOMERY WARD & CO., INCORPORATED 1383
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and, such of them as have been found to constitute unfair labor practices, 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 in
violation of Section 8(a)(1) of the Act, I will recommend that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of the
Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in this
case , I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Section
2(6)and (7) of the Act.
2. Airline Supply Technicians Local Union No. 172, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By granting its employees economic benefits to discourage organization, all in
the manner found herein, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) of the Act.
4. Except for the unfair labor practices found above, the Respondent has not
engaged in the other unfair labor practices which are alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this case, I recommend that Respondent Montgomery Ward &
Co., Incorporated, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Granting economic benefits to employees in order to discourage membership
in or activity on behalf of Airline Supply Technicians Local Union No. 172, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
or any other union; provided that nothing in this Decision and Recommended Order
shall be construed as requiring the Respondent to vary or abandon any economic
benefits or any term of employment which it has heretofore established.
(b) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Post at its store and warehouse in Melbourne, Florida, copies of the attached
notice marked "Appendix." 30 Copies of said notice, to be furnished by the Regional
Director for Region 12, shall, after having been duly signed by Respondent's repre-
sentative, be posted by Respondent immediately upon receipt thereof, and be main-
tained for 60 consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be taken
to insure that such notices are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 12, in writing, within 20 days from
the receipt of this Trial Examiner's Decision and Recommended Order, what steps
Respondent has taken to comply therewith.31
It is further recommended that unless on or before 20 days from the date of receipt
of this Decision and Recommended Order the Respondent notifies the said Regional
Director in writing that it will comply with the above Recommended Order, the
National Labor Relations Board issue an, order requiring it to take such action.
It is also recommended that the complaint herein be dismissed insofar as it alleges
violations of the Act not specifically found herein.
30 If this Recommended Order be adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice. In the further event that the Board's order be enforced by a decree of a
United States Court of Appeals, the words "a Decree of the United -States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order."
= 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'
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
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 our employees that:
WE WILL NOT grant economic benefits to our employees in order to discourage
membership in or activity on behalf of Airline Supply Technicians Local Union
No. 172, International Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, or any other labor organization , provided, however, that
nothing in this Decision and Recommended Order requires us to vary or aban-
don any economic benefit which has heretofore been established.
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
our employees in the exercise of their right to self-organization , to form labor
organizations , to join or assist the above -named Union, or any other labor
organization , to bargain collectively through representatives of their own
choosing , and to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection , or to refrain from any or all such
activities.
All our employees are free to become or remain , or refrain from becoming or
remaining , members of any labor organization of their own choosing.
MONTGOMERY WARD & CO., INCORPORATED,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Ross
Building, 112 East Cass Street, Tampa, Florida, Telephone No. 223-4623, if they
have any question concerning this notice or compliance with its provisions.
Great Leopard Market Corporation , Inc., d/b/a King Jack's
Foodarama and Amalgamated Food Employees Union Local
196, Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO. Cases Nos. 4-CA-2814 and 4-CA-
2851. January 29, 1965
DECISION AND ORDER
On October 3, 1963, Trial Examiner John H. Eadie issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Decision. The
Trial Examiner also found that the Respondent had not engaged in
another unfair labor practice alleged in the complaint. Thereafter,
the Respondent filed exceptions to the Decision and a brief in sup-
port thereof; the General Counsel filed cross-exceptions to a portion
of the Trial Examiner's Decision with a supporting brief, and a
brief urging adoption of the remainder of the Trial Examiner's
Decision. Thereafter, while the Board was considering the matter,
150 NLRB No. 134.