Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

Dec 27, 1966

162 N.L.R.B. 369 (N.L.R.B. 1966)

MONTGOMERY WARD & CO. 369
Montgomery Ward & Co., Incorporated and State and County
Chauffeurs , Warehousemen and Allied Workers, Local Union
No. 382, affiliated with International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America . Cases 3-
C A-2311, 2379, and 2516. December 27,1966
DECISION AND ORDER
On February 14, 1966, Trial Examiner George A. Downing issued
his Decision in the above-entitled consolidated 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. Thereafter, the General Counsel
and the Charging Party filed exceptions to the Decision and support-
ing briefs, to which the Respondent filed an answering brief. The
Respondent also filed cross-exceptions to the Decision and a support-
ing brief. '
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
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 Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following addition.
We find no merit in Respondent's contention to the effect that its
failure to discharge employees who had not complied with the union-
security provision of the contract was a mere breach of contract and
not a violation of Section 8(a) (5). Considering Respondent's con-
duct here, in context with other of its actions vis-a-vis the Union, it
is apparent to us that Respondent was endeavoring to undermine the
Union's status as bargaining representative. It is clear that Respond-
ent by this conduct was not discharging its bargaining obligations
imposed by Section 8(a) (5) of the Act, and we so find.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This consolidated proceeding under Section 10(b) of the National Labor Rela-
tions Act was heard before Trial Examiner George A. Downing in Rome, New
162 NLRB No. 38.
264-047-67-vol. 16 2-2 5
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
York, on October 19 and 20, 1965, pursuant to due notice. The complaint which
was issued on July 30, 1965, on charges dated March 24 and June 11, 1964, and
February 2, 1965, alleged in substance that Respondent engaged in unfair labor
practices proscribed by Section 8(a)(1) and (5) of the Act by various specified acts
of interference, restraint, and coercion in October and November 1963, in February
and May 1964, and on January 12, 1965, and by refusing to bargain in specified
respects on and after May 18, 1964, with the Union as a collective-bargaining rep-
resentative of its employees in an appropriate unit. Respondent answered denying
the unfair labor practices.
Upon the entire record in the case and from my observation of the witnesses I
make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent is an Illinois corporation with its principal office and place of business
at Chicago, Illinois. It operates various retail stores, mail order houses, and catalog
stores in the State of New York and in other States, in which it is engaged in the
sale and distribution of merchandise and related products. It formerly operated at
Rome, New York, a retail store located at 120 East Dominick Street, which ceased
operations on or about November 6, 1963, and thereafter it operated a store located
on Black River Boulevard in the Mohawk Acres Shopping Center. Only the Rome
stores are involved in this proceeding. In the course and conduct of its said opera-
tions, Respondent sells and distributes annually products whose gross value exceeds
$1 million , and Respondent receives annually directly from points outside the State
of New York goods valued in excess of $50,000. Respondent is therefore engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The Charging ,Union is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
The 8 ( a)(1) issues herein concern the legality of a statement attributed to Assist-
ant Store Manager Wayne Sherman in October 1963 , a speech to employees made
by Regional Personnel Manager Mileford E. Jacobson on November 14, 1963, the
promulgation and enforcement of a no-solicitation rule on February 28 and
March 6 , 1964 , a notice to employees on May 18 , 1964, concerning Respondent's
failure to remit to the Union , dues which it had deducted under authorizations from
the employees , and the alleged repudiation of a settlement agreement by a notice to
employees posted on January 12, 1965.
The refusal-to-bargain issues under Section 8(a) (5) concern Respondent 's alleged
unilateral changing of existing terms and conditions of employment by refusing to
transmit to the Union , dues and initiation fees required to be checked off under vol-
untary authorizations of the employees, by refusing to discharge upon the Union's
demands various employees who failed to become members of the Union as required
by union-shop provisions of the contract , and by discontinuing a practice of permit-
ting employees to make purchases at a 15 -percent discount on a designated day once
a year.
The refusal-to-bargain issues depend preliminarily on the resolution of a question
concerning the validity of a Board order which granted the Union's motion to
amend the unit description of earlier certifications of the Union. Also in issue is the
question whether Respondent engaged in unfair labor practices subsequent to a set-
tlement agreement in Cases 3-CA-2311 and 3-CA-2379, which were serious enough
to warrant setting aside the agreement and making findings on the earlier conduct.'
i As I find for reasons hereinafter stated that Respondent breached the settlement agree-
ment which the Regional Director approved on December 16, 1964, my findings herein
will include the earlier as well as the later conduct. See Baltimore Luggage Company, 126
NLRB 1204, 1208, 1211, and cases cited at page 1208
It is also to be noted that the Board recently overruled Larrance Tank Corporation, 94
NLRB 352, holding in Northern California District Council of Hodcarriera, 154 NLRB 1384,
that presettlement conduct may be considered In any case as background evidence establish-
Ing the motive or object of a respondent in Its postsettlement activities.
MONTGOMERY WARD & CO. 371
As much of the background herein relates directly to the validity of the Board's
amendment of the certification, itself an important threshold issue to resolution of
other main issues, we begin appropriately with the facts which preceded the amend-
ment and with Respondent's attacks on its validity.
B. Background; the amendment of the certification
Pursuant to a stipulated consent election conducted on April 3, 1958, Case
3-RC-1977, the Charging Union was certified by the Board on April 10, 1958, as
the collective-bargaining agent of all employees in Respondent's Rome Store, with
certain exclusions. On June 12, 1958, the Company and the Union entered into a
bargaining agreement covering said employees, said agreement having an expiration
date of June 1, 1963. Thereafter pursuant to a further stipulated consent election
conducted on February 24, 1961, Case 3-RD-174, the Union was recertified on
March 3, 1961, as the representative of the employees in the same unit . On June 1,
1963, the Union and the Company entered into a collective-bargaining agreement
covering the same employees, said contract having an expiration date of August 1,
1967.
On or about November 20, 1963, the Union filed with the Board a motion to
amend certification in which it recited the former certifications and the contracts
subsequently entered into and in which it represented that on or about November 6,
1963, Respondent ceased operating its retail store on East Dominick Street and
began identical operations at a new store at the Mohawk Acres Shopping Center,
some 2 miles from the former store, with all of the employees from the former
store. The motion sought an amended unit description to cover employees at the
new store with the same exclusions as formerly.
Respondent answered by letter of December 20, opposing the motion but admit-
ting the facts concerning the certifications and the collective-bargaining agreements.
The letter continued as follows:
Prior to November 6, 1963, the employer operated a relatively small retail
store in Rome, New York. The store had forty-six basic employees in an area
of 28,623 square feet of space and had a yearly sales volume of $1,156,360.
In fact, on February 24, 1961, a Decertification election was held at the store
in which forty-six employees voted.'The Union was re-certified.
Subsequent to November 6, 1963, the Company closed the small store and
opened a very large new store as part of the Company's expansion program.
The new store is located several miles from the closed store in a Shopping
Center. 'However, it contains one hundred eighty five basic employees in an
area of over 80,000 square feet of space, and has an expected volume of
between four and five million dollars per year. In addition, approximately a
dozen of the employees of the old store, who were in the Bargaining Unit,
have been promoted and are now Supervisory Employees within the meaning
of the National Labor Relations Act.
Because of the changed character of the operation and the great increase
in new employees, the Company declined to recognize the union as the major-
ity representative of the employees at the new location.
The Company believes that the question of the Motion to Amend Certifica-
tion, if said motion is not dismissed outright by the Board, should be referred
to the Regional Director of the Third Region, and that a hearing should be
held for the taking of such evidence as is necessary to determine the issue .. .
On February 6, 1964, the Board entered its order in which it recited the gist of
the Union's representations and in which it summarized the Employer's opposition
as follows:
By letter of December 20, 1963, the Employer filed opposition to the
Union's motion to amend the certification, alleging that the store in the new
location is much larger and that approximately a dozen employees of the old
store have been promoted and are now supervisory employees. The Employer
requested either dismissal of the motion or a hearing.
The Board granted the Union's motion to amend the certification, adding a state-
ment that its action was not to be construed as a recertification.
Conceding at the hearing herein that nothing has changed since November 20,
1963, which would affect the makeup or the constituency of the unit, Respondent
made the following offer of proof directed against the Board's action in permitting
the Amendment of the Certification.
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Rome, New York, store, located on Dominick Street, Rome, New York,
had 46 employees. The only supervisory employees at the store were the store man-
ager and the assistant store manager. The sales per year at the Dominick Street
store were approximately $1,156,360. The store had approximately 17,000 square
feet of sales area. The new store at the Mohawk Shopping Center had 185 basic
employees. It opened as of October 22, 1963. It had 262 employees, approximately
30 of whom were supervisors. Shortly thereafter the total employment at Mohawk
was up over 300 employees, exclusive of supervisors. The Mohawk Shopping Center
store contained approximately 80,000 square feet. The store on Dominick Street
was a limited department store. The store in Mohawk Shopping Center was a full-
line department store. In addition to the departments of the Dominick store, there
were added a department for junior fashions, a department for gift wares, a depart-
ment for cosmetics, a department for candy, a department for commercial truck
tires, a department of photographic equipment, a snack bar, and a complete auto
service facility with eight bays providing complete automotive service. The location
of the Mohawk Shopping Center was outside the city limits of Rome and approxi-
mately 2 miles from the old store.2
As is apparent, Respondent's offer of proof presented nothing which differed in
substance from the facts asserted in its opposition filed with the Board. Or were it
assumed, argnendo, that the minor particularization which were added were mat-
ters of substance, Respondent made no representation that the facts were unknown
or unavailable when it filed its opposition, and, indeed, it freely stipulated at the
hearing that nothing new occurred after the Union' s motion was filed.
Under those circumstances the general rule is applicable that absent newly dis-
covered evidence, unit issues raised and determined in a prior representation pro-
ceeding may not be relitigated in the complaint proceeding , Capital Bakers, Inc.,
148 NLRB 438, 442, and cases there cited; and thus the Trial Examiner is bound,
insofar as the offer of proof is concerned, by the Board's Order amending the
certification.
In addition Respondent offered, without objection, other evidence recited below
concerning a prior understanding with the Union which was apparently aimed at
attacking the Union's action in seeking the amendment, though the precise relevancy
is not made clear in Respondent 's brief. -
Negotiations were conducted in 1963 between Respondent and Teamsters' Mont-
gomery Ward Council, an organization of all Teamsters' unions , some 60 to 65 in
number, which had contracts with Respondent. The chief spokesman for the Council
was its chairman, Donald Peters, who also held a power of attorney from Local
382, and Respondent's chief spokesman was its attorney and labor relations direc-
tor, Richard C. Scheidt. Some time prior to October-November, agreement was
reached concerning the positions of the parties in cases where the union repre-
sented employees in a store being closed and where a new store was being opened.
That agreement was that if the complement of the new store increased up to three
times, the current contract would automatically apply. If the increase went beyond
five- or six-fold, the union would be recognized only on certification following an
election. In the area between three- and five-fold the contract would apply on proof
of the Union's majority through a card check. Being aware of the planned closing
of the Rome store, the Union here endeavored over a period of time to demonstrate
majority status by furnishing cards, apparently conceding, as Respondent contends,
that the complement of the new store would fall within the three to five range.
Whether the Union was successful in establishing a majority was a matter in
dispute under the testimony of Peters and Scheidt, both of whom were called as
Respondent's witnesses. Peters testified that there were several meetings on the
matter and that finally when the list of employees was "boiled down," the Union
had a majority of 19. He testified, however, he was informed by the Company
that it had to withdraw from the agreement at that store because of certain things
happening within the Company and that it could not agree to a card check. Peters
did not advise Scheidt later of the Union's intention to seek an amendment of the
certification from the Board and the matter was actually initiated by the attorneys
of the local union.
2 Respondent also requested the Examiner , as a part of its offer , to take official notice
of Case 17-CA-1677, previously pending in the Board ' s Regional Office in Kansas City, in
which the factors present were allegedly the same as at Rome and in which the Regional
Director ultimately dismissed the charge after investigation reciting that as "there is in-
sufficient evidence of violation , further proceedings ' are not warranted at this time
MONTGOMERY WARD & CO. 373
Scheidt testified that a few days after October 29, Peters informed him the Union
was attempting to get more cards signed by the employees at Rome and would
present them at some future (unspecified) date. Prior to that time Scheidt had
obtained from Store Manager Gallup under date of October 22, a list of employees
who had been hired to work at the new store. Scheidt's assistant, Charles F. Russ,
Jr., made on October 29 a check of union cards against the list and reported the
results to Scheidt along with information that Peters represented that 12 additional
cards were being forwarded . Scheidt testified that based on the foregoing and on
his own further analysis of the records he concluded that the Union did not have
a majority though he did not so inform Peters. It was during the subsequent con-
versation with Peters (after October 29) that Peters stated the Union would obtain
more cards, which proposed action, Scheidt testified, was agreeable to him at the
time. Sometime in November Scheidt informed Peters he would be unable to con-
tinue to follow their earlier agreement, and he testified that, "The discontinuance of
the agreement occurred at my insistence for various reasons."
If the foregoing evidence is considered as an attack on the amendment of the
certification , it is immaterial for a number of reasons . First , it was not called to
the Board's attention by Respondent , and no excuse is advanced here for its failure
to do so. Second , the evidence which Respondent adduced was in conflict as to
whether the Union failed to submit proof of majority. Third, Respondent notified
the Union that for various (undisclosed) reasons it was withdrawing from the
arrangement prior to the opening of the new store and at a time when the Union,
to Respondent's knowledge, was continuing to produce cards to establish a majority.
I therefore conclude and find on the entire evidence that the certification and
the contract created a presumption of the Union 's continuing representative status
and that the evidence which Respondent adduced was insufficient to overcome that
presumption and to establish that the Union no longer in fact represented a major-
ity of Respondent's employees.
C. The evidence concerning the unfair labor practices
1. The Sherman statement ; the Jacobson speech
Paul Bush testified that shortly before the new store opened (November 1963),
Wayne Sherman , assistant store manager , commented to him that so far as he was
concerned, there would be no union in the new store. Sherman did not deny that
testimony.3
On November 14, Mileford E. Jacobson, regional personnel director, made a
speech at two different assemblies of Respondent 's employees at the new store. The
speeches ran from 30 to 35 minutes, and though the testimony was in conflict as to
whether Jacobson read his speech ,4 the preponderance of the evidence is that he
followed , with some interpolations and changes , a written draft which was received
in evidence after Jacobson was examined extensively on voir dire concerning certain
notations thereon and concerning his deviations from the text . Furthermore the
conflicts in the testimony related chiefly to statements which , though strongly anti-
union , were not independently violative of Section 8(a)(1) (i .e., references to union
corruption and to Hoffa and other union representatives as racketeers , crooks, etc.,
who were driving big Cadillacs), and to others which are not assigned as violative
of the Act.
I therefore find that in delivering the speech Jacobson followed the written text
with such deviations therefrom as he testified to on voir dire examination by the
General Counsel.
As the General Counsel assigns no specific statement as violative of the Act, I
quote below from the Union's brief the excerpts which it relies upon and its conten-
3 Other testimony was offered concerning two other statements by Sherman which fell
outside the 10(b) period. One related to a conversation in August with an applicant for
employment in which Sherman stated there would not be a union in the new store Concern-
ing the latter testimony, Sherman admitted that when applicants asked him whether the
Union would be in the new store, his reply was to the effect that to the best of his knowledge
there would not be one and that he had been so advised by Respondent's Chicago office.
S Jacobson's script was on a podium, the top of which tilted toward him and away from
the audience, and Jacobson endeavored to give the impression so far as possible that he was
speaking extemporaneously.
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions thereon, together with a fuller recital in the footnotes of Jacobson's remarks
on some points:
"I know, absolutely and without question, that in the long run the union
has not benefitted, I repeat, has not benefitted the people it supposedly repre-
sents." The Employer then "firmly opposed" the Union and in the next para-
graph referred to the "new and really wonderful Company benefits," including
the new savings plan, the insurance plan, the retirement plan, the extended
vacation plan, and "all of the wonderful benefits and personnel policies."
Jacobson emphasized that the new benefits were provided by the Company
and "your company alone devised, put in to effect, and will pay for the increased
benefits."
Jacobson referred to the $5 union dues as a "serious disadvantage" and sug-
gested depositing the money in a savings plan . .
Jacobson pounded home his theme that the Union only wanted the employ-
ees' money and would do nothing for them. Remember that the new store had
just opened and on page one Jacobson told the employees that this was his first
visit to the store; on page 4 he stated, "many of you made it clear to me and to
Mr. Emmons, and to others, that if a union comes to the Rome store you
would resign rather than be forced to join."
Jacobson remarked that unions cause reductions in force in some stores ....
Jacobson said, "there is no difference between the Company's fringe benefits
and programs between those stores that are unionized and those that are not." 6
The Union also cites Jacobson's testimony that following the first speech several
of the employees asked how to get their union cards back, that he told them to send
a registered letter to the Union, and that because of those inquiries he inserted in
his second speech a reference to those facts.
2. The no-solicitation rule
The complaint allegations are directed at Gallup's statements concerning Respond-
ent's no-solicitation rule as made in a meeting with union representatives on Febru-
ary 28, 1964, and at the interpretation of the rule as expressed by one Barry Taintor
in a restaurant incident on March 6. Gallup's comments were made in responding
to a complaint by Business Representative DePerno concerning an earlier eviction
from the store of two union representatives whom the Union had sent in to collect
dues and to sign up new members.?
DePerno testified that Gallup stated in defending the eviction that union repre-
sentatives had no right to engage in such activitites "on company property or dur-
ing working hours"; that he in turn contended that if the representatives could not
talk to employees in the store, they should be allowed to talk to them during lunch
hour or during coffee breaks in areas other than the store; and that Gallup replied
that the representatives could not engage in solicitation at any time or at any place,
The language upon which the latter assertion is based is as follows
It is true that unions in some stores have created serious economic difficulties and op-
eration problems for that individual store, and normally when any store has excessive
operating costs the result is reduction in force . . . . As we mentioned above, when a
store gets into operating difficulty caused by higher payrolls than it can reasonably
support, there are only three choices. Namely, operate at or near a loss, close the store,
or reduce the payroll through reductions in force In most eases the latter course of
action is the only one available to any company, whether these is a union or not
e Jacobson's text contained the following particularization
The overtime provisions are exactly the same, the rest periods are exactly the same,
you are paid for jury duty , funeral pay is exactly the same Ten percent employee
discounts are the same every place. The number of paid holidays are identical. The
paid N acation benefits are identical The group insurance program is exactly the same ;
the retirement plan ; the savings plan. We work on a five day week basis. Special rates
on auto insurance are the same . . . .
That was apparently the language which one of the General Counsel's witnesses inter-
preted as meaning that Jacobson said the contract "didn't give us any benefits that the
Company hadn't already given."
4 The eviction incident is not alleged as a violation presumably because DePerno admitted
that his representatives were talking to employees on working time when they were ordered
off the premises.
MONTGOMERY WARD & CO. 375
i e., that there was an absolute rule against solicitation at any time on company
property. Testimony by DePerno's assistant, William A. Belden, was fully corrobora-
tive of the foregoing.
Gallup testified, however, that he explained that the new store observed a no-
solicitation rule from its opening under which Respondent did not allow anyone to
talk to or solicit employees in the public sales area of the store or to discuss mat-
ters of that nature while the employees were on their working time in that area. His
testimony concerning the application of the rule was as follows: no solicitation was
allowed by members of organizations of any employees at any time in the public
sales area (of which the restaurant was considered to be a part). The employees
were informed that they could not participate in any solicitation program when
working on scheduled time, though it was realized the Company had no jurisdiction
over the employees when on their own time . There were no restrictions concerning
the use of the restaurant area by the employees, who were entitled to use the facil-
ities along with the general public. Gallup testified that he did not put the rule in
writing; and although Respondent issued ' and distributed to its employees written
rules in considerable number governing employee conduct, such rules contained no
reference to a no-solicitation rule.
The restaurant incident also threw further light on the credibility issue and on the
manner in which Respondent enforced its rule. Marion Premo, an employee, and
Francis Lentini, recording secretary of the Union, testified that in March they were
having coffee in the lunchroom after Premo had punched out at 6 p.m. and that
Supervisor Barry Taintor 8 approached and told them that they were not to discuss
union business on company time. Lentini denied that they were discussing union
business and informed Taintor that Premo had already punched out and was leav-
ing the store and that Lentini had invited here to have coffee. Taintor insisted never-
theless that they were not permitted to discuss the Union on company property at
all and that they would have to leave if they were going to discuss it further.
Lentini's testimony was closely corroborative of Premo's. She added that Taintor
made the statement that no one was supposed to talk union on Montgomery Ward
property and if they wanted to do so they would have to leave the premises. Tain-
tor was not called as a witness.
On March 18, Gallup, in replying to the Union's letter of February 14, which
complained of the eviction incident, stated the no-solicitation rule in terms which
accorded with his testimony.
3. Discontinuance of the 15-percent discount day
Though the contract provided for a flat 10-percent discount on all employee pur-
chases, there is no dispute that for 6 or 7 years through 1963 Respondent also reg-
ularly allowed the employees at the Rome store (and elsewhere) a 15-percent
discount on all merchandise purchased on a single designated date around Thanksgiv-
ing. Store Manager Gallup testified that the granting of the discount was pursuant to
notice received from the Respondent's regional office in Baltimore and that in mid-
November 1964, no word having been received, he notified the employees at a reg-
ular store meeting that there would not be a 15-percent discount day.
Donald Peters, who as chairman of Teamsters' Council participated in contract
negotiations, testified that the, subject of employee discounts was one which was
involved in the 1963 negotiations for contract changes and that the Union proposed
that a 20-percent discount be allowed employees on all their purchases. The Com-
pany did not agree, and the result ultimately was that there was no change in the
discount policy from the previous contract. Peters testified further that there were
discussions of the Union's discount proposal during which the Company, in an
attempt to reach an agreement on the question, stated that it would not agree to a
20-percent discount but would continue its old policy in effect and that it expected
to continue the discount.
Richard C. Scheidt, Respondent's labor relations director, testified that initially
the Company's position was that it would continue the flat 10-percent rule but that
the Union was later told that although the Company would not liberalize that policy,
certain exceptions could be expected in the way of special discounts for promotional
8 Though Respondent denied by answer that Taintor was a supervisor, undenied testi-
mony by Grace Dominico. an employee in the catalog department under Taintbr, plainly
established Taintor's supervisory status. Furthermore, Gallup admitted that Taintor was
promoted to department manager in the new store and that all department managers in
that store were supervisors, with the right to hire and fire and to schedule employees
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purposes and he referred in that connection to the 15-percent Christmas clearance
(which he characterized as the subject matter of this complaint), and to another
promotion called W-Days on which the employees in effect received a 20-percent
discount. Scheidt also referred to the special discount arrangement which the Com-
pany was providing at the time for the purchase of automobile tires for personal use
and added that he anticipated the Company might offer other promotional schemes
for whatever purpose it deemed appropriate during the contract term. In conclusion
he informed the Union he could make no guarantees other than the flat 10-percent
policy, with the understanding that the Company would inject, put into effect, and
remove any special promotion as it saw fit.
Scheidt testified further that the 15-percent discount day was eliminated through-
out the country simultaneously and that he had no inquiry or grievance concerning
it from the Rome local, though he did receive correspondence from one other Team-
sters' local about it. The General Counsel attempted no refutation of that testimony.
Also pertinent concerning the discount issue was a provision in the Union's pro-
posal that wherever a higher standard or condition of employment existed than that
recognized in the contract, such conditions would be formalized in writing within 6
months of the effective date of the proposal. The testimony of Peters and Scheidt
was in direct conflict as to whether agreement was reached, but not reduced to writ-
ing, that if a local union felt that it had an existing practice which was more bene-
ficial than the contract, it would notify Scheidt and if agreement was reached for
acceptance of the better conditions, then separate letters of understanding would be
exchanged, though not becoming an immediate part of the contract. Scheidt testi-
fied that he heard from some three or four different local unions concerning more
beneficial conditions but that Rome was not one of them.
Finally it is to be noted that on November 14, 1963 (after the negotiations had
ended), Jacobson, in enumerating employee benefits in the best possible light,
informed the employees that the 10-percent discount was the same at all stores, and
he made no reference to any special discounts at Rome or elsewhere.
Resolving the foregoing credibility conflicts, I conclude and find that the evidence
as a whole as summarized above tends to support and corroborate Scheidt, whose
version I accept and credit.
4. The settlement agreement
On December 16, 1964, the Regional Director approved a settlement agreement
with Respondent (the Union not joining) of the matters involved in Cases 3-CA-
2311 and 2379, and Respondent posted under date of January 12, 1965, a formal
notice to its employees of that settlement. The notice contained in addition to a
broad clause assuring employees of their Section 7 rights, a paragraph assuring them
that Respondent would not derogate the rights of the Union to bargain collectively
on behalf of employees in an appropriate unit and the following more specific
provisions:
WE WILL NOT promulgate or maintain in writing or verbally any rule restrict-
ing solicitation or other legal activities by our employees on behalf of any labor
organization or against any labor organization on our employees ' own time and
in nonpublic parts of our premises.
WE WILL NOT refuse to deduct and transmit to the above -named labor organi-
zation any dues required to be checked off from employees ' wages in accord-
ance with voluntary authorizations , nor will we announce to employees our
decision to refuse to deduct and transmit such dues. -
WE WILL transmit to the above-named labor organization all dues and ini-
tiation fees already deducted from employees ' wages and now held by us.
WE WILL NOT unilaterally change any terms or conditions of employment
without bargaining collectively with the above -named labor organization.
WE WILL NOT advise our employees that if a union deauthorization election
is successful dues will be refunded to them.
WE WILL NOT in any manner make any promises of benefit to employees in
order to influence their vote in any election to be conducted by the National
Labor Relations Board.
Simultaneously with the posting of the settlement notice Respondent also posted
on the same bulletin boards the following notice to all employees over the signature
of Store Manager Gallup:
This week, in Washington, D.C., the Appeals Branch of the National Labor
Relations Board removed the last obstacle in the way of the "no union shop"
MONTGOMERY WARD & CO. 377
election which the majority of you employees sought so long ago. As you
know, Local 382 has been making every possible frantic effort to block this
election, thereby denying you the right to a voice in your own union affairs.
While I feel very strongly that you should have been allowed to exercise the
democratic privilege of determining whether you must continue to pay a sub-
stantial portion of your hard-earned wages to the Union, I can understand
their efforts to compel you to pay this tax for as long as possible. Faced with
the possibility of dragging this tax-paying period out much further-for as long
as two years-the Company agreed to remit to the Union the dues deducted
and held in escrow during the past several months. We agreed, under the
threat of prolonging the time for an election, to post a notice to you stating
that we would not make certain efforts to explain to you the effects of voting
"Yes" in this election. We do this, in part, because we are certain that you are
intelligent enough to see the possibilities yourselves. We do, however, have the
obligation and the right, and we will recognize and use them, to answer your
legitimate questions concerning your legal rights in this matter. We intend also
to furnish to every employee protection against possible union or employee
intimidation and coercion when you express your lawful opinions and exercise
your rights in the forthcoming election. We urge you to seek from us the
answers to your questions and to report any instances of attempts to threaten
you or to obstruct your activities.
We will make every effort to keep you fully informed of future develop-
ments as they occur.
Thereafter having found that Respondent failed to comply with the settlement
agreement, the Regional Director revoked it and set it aside and issued the con-
solidated complaint herein.
5. The refusal to remit union dues; the refusal to discharge employees
The contract contained union-security provisions as alleged in the complaint
under which membership in the Union was required as a condition of employment
of all employees who were members and of all new employees after 30 days of
employment. The contract also contained a checkoff clause providing that the Com-
pany would deduct periodic dues and initiation fees pursuant to valid authorizations
signed by individual employees and that it would remit the funds to the Union
monthly.
Although Respondent held authorization cards from employees of the old store,
it made no dues deductions after the new store was opened until after it received
the Board's order amending the certification. It resumed the making of deductions
effective on March 19, 1964, and it transmitted the March collections to the Union.
Thereafter though continuing the deductions, it did not remit the funds to the Union
until some time in January (as an incident of compliance with the settlement agree-
ment). In the meantime on May 18, Gallup posted a notice to all employees as
follows:
Pending the outcome of the petition to nullify the obligation to pay dues and
initiation fees to the union, the following practice will be in effect:
1. Present employees who have signed check-off authorizations will
continue to have their money deducted. -
2. Present employees who have not made payments for dues or initia-
tion to the union or are not otherwise on a current basis must either
transmit such money to the union or sign a check-off form. In either
event, an amount will be computed to make the employee current in their
obligation to the union.
3. All the money deducted from the employee's pay by check-off will
be held in a separate account by the Company. It will not be transmitted
to the union pending the outcome of the election.
If the employees vote to nullify the obligation to pay dues and initiation
fees as stated in the contract, the money collected will be returned to the
employees. If the employees vote to continue the present contractual obligation
the money so held will be transmitted back to the union. . . .
On June 10 Union Attorney Hugh J. Beins wrote Respondent referring to the
withholding of the money as "a clear violation of the contract" and requesting that
Respondent waive the procedural steps outlined in the grievance clause so that "the
matter may immediately go to an arbitrator." Respondent refused to waive the
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
procedural steps but stated its willingness to have the matter processed as a
grievance.
On June 21 and August 3 and 26, Beins proceeded by letters to invoke successive
steps of the grievance procedure, and on September 24 he wrote Don Peters, of
the Union, and Attorney Scheidt, of the Company, as the representatives of the
Joint Grievance Committee, pursuant to step 4(a).
On November 3 Beins wrote Scheidt referring to the prospective Board settle-
ment and stating that the Union would not agree to any settlement which did not
include the provision for transmittal of the dues money to the Union. On Novem-
ber 23 Beins again wrote Peters and Scheidt as the Joint Grievance Committee
inquiring when the Committee would hear the case.
Testifying as a witness, Beins admitted that he learned later that the Committee
mentioned or discussed the grievance at a meeting in Miami in February 1965, and
that prior to that time Peters informed him the grievance would not be processed
any further because the Company had transmitted the dues pursuant to the Board
settlement agreement . Beins testified the transmittal of funds was made around the
first week in January, but he would not acknowledge that the grievance was resolved
because the Union had demanded 6-percent interest on the money and the settle-
ment did not provide for interest. Beins agreed, however, that after the money was
paid the only issue under the grievance was the question of interest.
Peters testified that the grievance was on the agenda of the Committee, that the
case was heard in February 1965, and that both sides at that point stated that in
all probability the point was being settled by the Board. No decision was rendered
and nothing further was done concerning the grievance.
There is no dispute under the evidence that beginning on March 25 and April 15,
1964, the Union made a number of written and oral requests that Respondent dis-
charge employees who had not become members of the Union pursuant to the
union-shop provisions of the contract, nor is there dispute that Respondent never
complied with those requests. It claims first an oral waiver of the contract pro-
visions, and that contention can be accepted for the period ending December 15,
1964, for the complaint claims a violation only on and after that date. I find, how-
ever, contrary to the testimony of Assistant Store Manager Sherman that there
was no waiver on or after December 15, but that to the contrary the Union repeat-
edly insisted, orally and by letters dated January 17, February 6, and April 10,
1965, that Respondent discharge employees who had not joined the Union pursuant
to the contract.9
D. Concluding findings
1. Section 8(a) (1) statements
Sherman 's statement to Bush that there would be no union in the new store is
properly to be viewed in the light of Sherman's admission that it was his practice
to make similar statements to applicants for employment (as far back as August)
and the further fact that until a few days before the formal opening of the new
store , Respondent was pretending to go through the motions of complying with the
Peters-Scheidt agreement under which the issue of the Union's status was an open
one. Though I therefore conclude and find that Sherman 's statement was inde-
pendently violative of Section 8(a)(1), it is equally important as essential back-
ground to Jacobson's speech, for it was manifest from Sherman's statements that
despite Respondent 's pretensions until the virtual eve of the store opening, it had
no intention of according the Union further recognition regardless of what the
agreed card check might finally show.
We turn then to the speech itself.
The complaint alleges that by Jacobson's speech Respondent requested and
encouraged employees to deal directly with it rather than seeking representation
through the Union at a time when the Union was the exclusive bargaining repre-
sentative of the employees and that it promised the employees economic and other
benefits if they refrained from becoming or remaining members of the Union or
giving any assistance to it.
B Sherman's testimony of waivers allegedly made by Paul Bush, secretary-treasurer of the
Union, was flatly denied by Bush on rebuttal, and the repeated contemporaneous written
requests supported Bush's denial that any waiver was made after the meeting about the
matter on December 15 Indeed, Sherman finally admitted that he had no discussion of
the matter following the Union's last written request of April 10, 1965.
MONTGOMERY WARD & CO. 379
This speech must be viewed of course in the light of the circumstances existing
at the time, i.e., that the Union was the certified and contractual representative of
Respondent's employees and that only a few short days before Respondent had
withdrawn for undisclosed reasons from an agreement under which the Union was
continuing to submit additional membership cards from employees. In that setting
Jacobson's speech was an outright disavowal of its contract and an attempt to
undermine the loyalty of the employees to their bargaining representative.
Though arguing that Respondent's refusal to recognize the Union at the time of
the relocation of the store constituted in itself a refusal-to-bargain violation, the
General Counsel concedes that such violation was considered as rendered moot by
the Union's motion to amend the certification, but the General Counsel contends
that such , mootness did not extend to the Section 8(a)(1) effects of Respondent's
conduct. Finding that contention to be wholly sound, I conclude and find that by
Jacobson's speech Respondent sought to encourage the employees to deal directly
with it rather than through their bargaining representative, to the disparagement of
the Union and the collective-bargaining process, and held out promises of benefits
to accomplish its purpose. Montgomery Ward and Co., 154 NLRB 1197; Mont-
gomery Ward & Co., Inc., 155 NLRB 482. Newberry Mills Inc., 141 NLRB 1167,
1169, 1170; Nickey Chevrolet Sales, Inc., 142 NLRB 23, 25-26; George E. Light
Boat Storage, Inc., 153 NLRB 1209.
I reject Respondent's contention that the speech was given "at a time when by
mutual consent the Union was not the exclusive bargaining representative of the
employees ." Not only did Peters contend ( as Respondent 's witness under rule
43(b), F.R.C.P.), that the Union had established majority status, but the evidence
is undisputed that Scheidt suddenly withdrew from the card-check arrangement
when to his knowledge and with his acquiescence the Union was continuing to
submit additional cards. See section B, supra.
2. The no-solicitation rule
Though there was a credibility issue concerning Gallup's February 28 statement
of the no-solicitation rule, there was none concerning Taintor' s interpretation and
application of the rule, which was in accord with the DePerno-Belden testimony
of Gallup's promulgation of the rule. That the rule was in fact an absolute prohibi-
tion was plain from the undenied testimony concerning the restaurant incident,
particularly from the fact that though Taintor was assured both that Premo had
punched out and that the conversation did not concern union matters, Taintor
insisted nevertheless that they could not converse on Respondent's property at all.
To contend that the restaurant was considered to be a part of the public sales
area does not avail Respondent for Premo and Lentini were as much entitled under
the circumstances at the time to patronize the restaurant as any other members of
the general public. Indeed , as Gallup conceded, there were no restrictions on the
use of the restaurant area by employees on their own time.
I therefore credit the testimony of DePerno and Belden, and I conclude and find
that on February 28 and on or about March 6, Respondent orally announced and
promulgated an unlawfully broad no-solicitation rule which prohibited all union
solicitation activities on Respondent's premises , in violation of Section 8(a)(1).
3. Discontinuance of the 15-percent discount day
Under the testimony of both Peters and Scheidt the negotiations concerning dis-
counts related directly to the contract clause which provided for a 10-percent dis-
count on all employee purchases , with the Union proposing that that figure be
increased to 20 percent. Existing contracts (with some 60-odd locals) contained no
reference to other special discounts which Respondent from time to time unilaterally
allowed, and the record did not establish that the Union either in the past or during
the 1963 negotiations ever requested Respondent to bargain about them or objected
to Respondent's action in granting them. Indeed, Scheidt's credited testimony showed
that in the latter negotiations Respondent reserved the right to make exceptions (as
it had in the past) for various promotional purposes and that the Union acquiesced
(as it had in the past).
This is therefore not a case which calls for application of the waiver principle for
the Union made no demand or proposal concerning the allowance of special dis-
counts and it acquiesced in Respondent's action that it proposed to continue to put
into effect and to remove any special promotion discount as it saw fit.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Insofar as the issue on the "higher standards" clause is concerned, I have credited
Scheidt's testimony that Local 382 did not, as understood during the 1963 negotia-
tions, notify Respondent that it was claiming the 15-percent discount day as a more
beneficial condition.
The issue is, of course, whether Respondent's action vis-a-vis the Rome employees
was calculated to interfere with, restrain, and coerce them in the exercise of their
Section 7 rights. But the action applied to all of Respondent's stores, including the
60-odd at which Teamsters had contracts, and the record does not establish that
the issue was raised elsewhere. Thus the Union's action here appeared to be no
more than an afterthought, the assertion of a makeweight claim to support its over-
all charges. In any event it cannot be found on the present record that the General
Counsel established by a preponderance of the evidence that Respondent's action as it
applied to the Rome store was calculated to interfere with, restrain, and coerce the
employees there within the meaning of Section 8 (a) (I).
4. Repudiation of the settlement agreement
The text of Respondent's notice posted simultaneously with the settlement notice
made clear to the employees not only that Respondent's assent to the settlement was
most grudgingly given but also that the required compliance steps would be as
grudgingly taken. For example, Respondent informed the employees that it was
"under threat" that it agreed to post the settlement notice and to refrain from the
conduct described in it. Indeed the notice as a whole manifested to the employees
not full, but qualified, acceptance of the obligations expressed in the settlement
notice, for the notice showed plainly that Respondent was attempting to negate the
effectiveness of the settlement agreement and to alter the impression the settlement
notice was intended to achieve. Though I conclude and find that the notice violated
both the spirit and the letter of the settlement agreement, Carolina Mirror Corpo-
ration, 123 NLRB 1712, 1713, 1732, it was in any event "a patent effort to mini-
mize the effect of the Board's notice." Bangor Plastics, Inc., 156 NLRB 1165.
I therefore conclude and find that such derogation of the intent of the settlement
notice violated and repudiated the settlement and that by such conduct Respondent
interfered with, restrained, and coerced employees within the meaning of Section
8(a) (1). I find further that the settlement agreement was also violated by-Respond-
ent's subsequent unfair labor practices as found in the next sections.
5. The refusal to remit dues
The failure to remit the dues was a matter which the Union treated from the
beginning as a mere breach of contract, for the remedying of which it invoked the
various steps of the grievance procedure up to step 4(a) where it became the sub-
ject of consideration and discussion before the Joint Grievance Committee of union
and management representatives. Though no formal action was taken by the com-
mittee, it informed the Union in February 1965, that the grievance would not be
processed any further because the Company had transmitted the dues pursuant to
the settlement agreement.
There is no claim that the committee did not fairly and fully consider the griev-
ance, which it apparently considered as fully settled, and the Union did not seek
arbitration concerning the item of interest which Beins admitted was all that
remained of the grievance.
On this record I find it unnecessary to consider whether the mere failure to remit
the funds constituted an unfair labor practice, for I find that the Union pursued the
matter as a breach of contract through the grievance procedure to a, point where it
acquiesced (albeit grudgingly, no doubt) in the Joint Committee's decision that the
matter had been resolved for all practical purposes by the payment of the money
under the settlement agreement. Cf. The Flintkote Company, 149 NLRB 1561.
Respondent's announcement to the employees, however, stood on an entirely dif-
ferent footing. Thus Respondent was committed by the contract to remit to the
Union the dues and fees which it had deducted under signed authorizations from
the employees. Whatever effect the outcome of an election on the union shop deau-
thorization petition might have had on Respondent's obligation to continue the
checkoff as such, it is plain that the mere pendency of the petition did not relieve
Respondent of its duty to remit monthly all dues which it had checked off. Nor
does Respondent suggest how an unsuccessful outcome (to the Union) would have
voided retroactively dues collections which had been made prior to the election
under valid, unrevoked authorizations.
MONTGOMERY WARD & CO. 381
Indeed by continuing the checkoff Respondent seemed implicitly to concede that
it was obligated to honor the authorizations, and it makes no contention here that
it could properly have ceased to honor them upon the filing of the petition.10 In
such a setting Respondent's announcement to the employees stood as a naked prom-
ise to return to them all dues which it checked off under their valid authorizations
if they should vote against the Union, for the announcement stated explicitly that,
"If the employees vote to nullify the obligation to pay dues and initiation fees as
stated in the contract, the money will be returned to the employees." Thus Respond-
ent sought brazenly to buy the employees with their own money to vote against the
Union in the union shop deauthorization election.
I therefore conclude and find that by its said announcement Respondent inter-
fered with, restrained, and coerced employees in the exercise of their Section 7
rights within the meaning of Section 8(a)(1) of the Act.
6. The refusal to discharge nonmembers
In explicit language the proviso to Section 8(a)(3) authorizes employer and
union (under stated conditions, here met) to require membership in the Union "as
a condition of employment." In Bethlehem Steel Company (Shipbuilding Division),
136 NLRB 1500, 1502, the Board held that union-security provisions of the con-
tract affected or might affect "wages, hours, and other terms and conditions of
employment" and that the employer might not act unilaterally with respect to them,
and the Board added, "So long as such a contract is in force, the parties may, con-
sistent with its union security provisions, require union membership as a condition
of employment."
The evidence here showed that Respondent persistently refused to honor valid
union-shop provisions of the contract expressly authorized by the statute under
which membership in the Union was required as a condition of employment. By
such action Respondent unilaterally changed one of the terms and conditions of
employment, ignoring the repeated insistence of the Union that it honor its legal
commitment. Indeed, in practical effect Respondent by unilateral action nullified a
condition of employment, setting at naught the provision under which the union
membership was as much a condition of employment as wages, hours, seniority, and
other numerous mandatory subjects of bargaining upon which the agreement of the
parties is recorded in the contract. Respondent could no more alter legally the
union-security provision by unilateral action than it could, for example, make uni-
laterally a mid-term contract modification by reducing contract wage rates, cf. Hut-
tig Sash and Door Company, Incorporated, 154 NLRB 811, or by unilaterally rais-
ing the wage rates of employees, of. Century Papers, Inc., 155 NLRB 358. And, of
course, it is now definitively settled that such unilateral action by an employer con-
stitutes a refusal to bargain within the meaning of Section 8(a) (5) and (d),. U.S. v.
Katz, 369 U.S. 736.
We turn then to Respondent's contention that what is involved here is a simple
breach of contract, a matter which Congress deliberately chose to leave "to the
usual processes of the law." Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 513.
For Respondent argues that the right to discharge cannot exist apart from the con-
tract and that the proviso to Section 8(a)(3) amounts only to affording a legal jus-
tification for an employer to discharge an employee for refraining from engaging
in Section 7 activities.
It is true of course that neither Section 8(a) (3) nor the proviso specifically makes
it an unfair labor practice for an employer to refuse to discharge an employee for
failure to comply with valid union-security provisions, though a review of the legis-
lative history shows that implicit in the congressional debates was the assumption
of the speakers both pro and con that under the proviso as enacted the union could
require such a discharge. But to stress Section 8(a)(3) is to place the emphasis at
the wrong place and to ignore the basic theory of the General Counsel's case, which
10 Though unnecessary to consideration of the present point it is to be noted that the
checking off of union dues and remittance thereof to the union have been held to be a term
or condition of employment within the meaning of the Act. Bethlehem Steel Company
(Shipbuilding Division), 136 NLRB 1500, 1502; United States Gypsum Company, 94 NLRB
112, footnote 7 ; N L R B. v Reed & Prince Manufacturing Company, 205 F.2d 131, 136
(C.A. 1) cert. denied 346 U.S. 887. It has also been held that the filing of a UD petition
does not affect an employer 's duty to bargain concerning such terms and conditions of em-
ployment . See, e .g., Perry Rubber Company, 133 NLRB 225, 228-289; Ideal Roller & Mango-
facturing Co., 109 NLRB 282.
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is not grounded on discrimination to encourage or to discourage union membership
but on a refusal to bargain through unilateral action which altered a valid contract
provision concerning a condition of employment and a compulsory subject of bar-
gaining. Bethlehem Steel Company, supra; U.S. v. Katz, supra; and cf. Huttig Sash
and Door Company and Century Papers Inc., supra.
By such conduct Respondent engaged in an unfair labor practice within the mean-
ing of Section 8(a)(5) and (d).
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. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1).
2. All employees of Respondent's store at Mohawk Acres Shopping Center, Black
River Boulevard, Rome, New York, excluding the store manager, the assistant store
manager, guards, professional employees, and supervisors as defined in the Act con-
stitute a unit appropriate for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
3. At all material times the Union has been and now is the exclusive representa-
tive for the purposes of collective bargaining of the employees in the above unit as
provided in Section 9(a) of the Act.
4. Respondent refused to bargain with the Union within the meaning of Section
8(a)(5) and (d) on and after December 15, 1964, by unilaterally changing exist-
ing terms and conditions of employment in derogation of the Union's status as
statutory representative of its employees by refusing upon the Union's demand to
discharge various employees who failed to become members of the Union as required
by valid union-security provisions of its collective-bargaining agreement.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain unfair labor practices I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action of the type which is conventionally ordered in such cases as provided in the
Recommended Order below and which I find necessary to remedy and to remove
the effects of the unfair labor practices and to effectuate the policies of the Act.
Because Respondent's disposition to engage in unfair labor practices is established
by its violation of the settlement agreement and by its unlawful conduct as found
in other cases (cf. Montgomery Ward and Company, 154 NLRB 1197 and 155
NLRB 482), I shall recommend a broad cease-and-desist order requiring Respond-
ent to cease and desist from in any manner interfering with, restraining, or coerc-
ing its employees in the exercise of their Section 7 rights. I shall also recommend
that Respondent repost copies of the notice to employees which it previously posted
pursuant to the settlement agreement.
Upon the foregoing findings of fact and conclusions of law and the entire record,
and pursuant to Section 10(c) of the Act, I hereby issue the following:
RECOMMENDED ORDER
Montgomery Ward & Co., Incorporated, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Informing employees that there will be no union in Respondent's store.
(b) Requesting and encouraging employees to deal directly with it rather than
seeking representation through the Union at any time when the Union is the statu-
tory collective-bargaining representative of its employees in an appropriate unit.
(c) Promising employees economic and other benefits in order to influence their
vote in any election to be conducted by the National Labor Relations Board or to
induce them to refrain from becoming or remaining members of the Union or giving
assistance or support to it.
(d) Promulgating or maintaining verbally or in writing any rule restricting solic-
itation or other legal activities by its employees on behalf of or against any labor
organization on the employees' own time and in nonpublic parts of its premises.
(e) Informing its employees that if they vote to nullify the obligation to pay
dues and initiation fees in a union-shop deauthorization election, their dues and fees
will be returned to them.
MONTGOMERY WARD & CO. 383
(f) Posting any notice to its employees which repudiates or violates any settle-
ment agreement approved by the Board or which violates or attempts to alter or
negate the meaning of the "Notice to Employees," the posting of which is required
below.
(g) Refusing to bargain with the Union by unilaterally changing existing terms
and conditions of employment in derogation of the Union's status as statutory rep-
resentative of its employees, by refusing to discharge upon the Union's demands
employees who fail to become members of the Union pursuant to valid union-
security provisions of its collective-bargaining contract.
(h) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form, join, or assist State and
County Chauffeurs, Warehousemen, and Allied Workers, Local Union No. 382,
affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization, to bargain collectively
through representatives of their own choosing or 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
employment as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action:
(a) Recognize the Union as the exclusive bargaining representative of its employ-
ees in the appropriate unit herein found and honor upon the Union's demand all
union-security provisions of its collective-bargaining agreement with the Union.
(Hyde's Super Market, 145 NLRB 1252, 1253, enfd. 339 F.2d 568 (C.A. 9).)
(b) Post in its offices and store at Rome, New York, copies of the attached notice
marked "Appendix," and repost the "Notice to Employees" which was required to
be posted as an incident of the settlement agreement." Copies of said notices, to be
furnished by the Regional Director for Region 3, after being duly signed by
Respondent's representative, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con-
spicuous places, where notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 3, in writing, within 20 days from
the receipt of this Decision, what steps Respondent has taken to comply herewith.12
"In the event that this Recommended Order is 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. If the Board's Order is enforced by a decree of a United
States Court of Appeals, the notice will be further amended by the substitution of the
words "a Decree of the United States Court of Appeals Enforcing an Order" for the words
"a Decision and Order."
12 In the event that this Recommended Order is adopted by the Board, this provision shall
be modified to read : "'Notify the Regional Director for Region 3, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
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 inform employees that there will be no union at our store.
WE WILL NOT request or encourage our employees to deal directly with us
rather than seeking representation through the Union at any time when the
Union is the statutory collective-bargaining representative of our employees in
an appropriate unit.
WE WILL NOT promise economic and other benefits to employees in order to
influence their vote in any election to be conducted by the National Labor
Relations Board or to induce them to refrain from becoming or remaining
members of the Union or giving any assistance or support to it.
WE WILL NOT promulgate or maintain in writing or verbally any rule
restricting solicitation or other legal activities by our employees on behalf of or
against any labor organization on our employees' own time and in nonpublic
parts of our premises.
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT inform our employees that if they vote to nullify the obliga-
tion to pay union dues and initiation fees in a union -shop deauthorization elec-
tion , their dues and fees will be returned to them.
WE WILL NOT post any notice to our employees which repudiates or violates
any settlement agreement approved by the National Labor Relations Board or
which violates or attempts to alter or negate the meaning of the present notice.
WE WILL NOT refuse to bargain with the Union by unilaterally changing
existing terms and conditions of employment in derogation of the Union's status
as statutory representative of our employees by refusing to discharge upon the
Union's demands employees who fail to become members of the Union pur-
suant to valid union-security provisions of our collective -bargaining contract
with the Union.
WE WILL NOT in any manner interfere with, restrain , or coerce our employ-
ees in the exercise of their right to self-organization to form, join, or assist
State and County Chauffeurs , Warehousemen , and Allied Workers, Local Union
No. 382, affiliated with International Brotherhood of Teamsters , Chauffeurs,
Warehousemen , and Helpers of America, or any other labor organization, to
bargain collectively through representatives of their own choosing or to engage
in concerted activities for the purposes 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 employment as authorized by Section
8(a)(3) of the Act.
WE WILL recognize the Union as the exclusive bargaining representative of
our employees in the appropriate unit as found in the Decision and will honor
upon the Union 's demand all union security provisions of our collective-
bargaining agreement with the Union.
All our employees are free to become or remain members of the above-named
Union or any other labor organization or to refrain therefrom , except to the extent
that such right may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Section 8(a)(3) of
the Act.
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.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office, Fourth
Floor, The 120 Building , 120 Delaware Avenue, Buffalo , New York 14202, Tele-
phone 842-3112.
Rheingold Breweries , Inc. and Salesmen's Division , Local 153,
Office and Professional Employees International Union, AFL-
CIO, Petitioner . Case 2-RC-14333. December 27, 1966
DECISION ON REVIEW AND DIRECTION OF ELECTION
On June 28, 1966, the Regional Director for Region 2 issued a
Decision and Order in which he dismissed the petition on the ground
that no question concerning representation existed in the requested
unit of route salesman, including merchandisemen, employed at the
Employer's Bridgeport, Connecticut, plant. Thereafter, in accordance
with Section 102.67 of the National Labor Relations Board Rules and
162 NLRB No. 32.