Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

Nov 24, 1969

179 N.L.R.B. 686 (N.L.R.B. 1969)

686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Montgomery Ward & Co., Incorporated and
Teamsters, Chauffeurs , Warehousemen & Helpers
Union, Local No. 524 , affiliated with International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America,
Independent . Case 19-CA-4213
November 24,, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA .
On August 1, 1969, Trial Examiner Henry S.
Sahm, 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.
Thereafter,•the Respondent filed exceptions to the
Decision and a supporting brief, and the General
Counsel and Charging Party filed answering briefs.
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.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings,' conclusions," and recommendations of the
Trial Examiner.
Washington, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as so modified:
Delete paragraph 1(a) of the Recommended Order
and reletter the remaining paragraphs respectively
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HENRY S SAHM, Trial Examiner This case tried at
Yakima and Seattle, Washington, May 6, 7, and 12, 1969,
pursuant to a charge' filed the preceding December 6, and
a complaint issued March 4, presents questions as to
whether Respondent countered an organizing campaign
with unlawful interrogation and by discharging five
employees for union activity Upon the entire record,
including- observation of the witnesses and after due
consideration of the briefs filed by each' of the parties,
there are hereby made the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENTS AND THE LABOR
ORGANIZATION INVOLVED
Montgomery Ward & Co , Incorporated, an Illinois
corporation, engaged in the -operation of approximately
500 retail stores throughout the United States, operates a
store at Yakima, Washington, which is involved in this
proceeding During the past year, Respondent had gross
sales-in excess- of $50,000 and it purchased-and received
for its Yakima store, goods valued in excess of $50,000
which are shipped from outside the State of Washington
It is found that Respondent is an employer engaged in
commerce' within the meaning of Section 2(6) and (7) of
the Act The Charging Party, herein called'the Unioii, is a
labor organization within the meaning of Section 2(5) of
the Act
II. THE ALLEGED UNFAIR LABOR PRACTICES
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
Recommended Order of the Trial Examiner, as
modified below, and orders that the Respondent
Montgomery Ward & Co , Incorporated, Yakima,
'We note and correct the following minor errors in the Trial Examiner's
Decision which in no way affect the result in this case Employee O'Keefe
testified that the employees at the hearing agreed among themselves rather
than between them and Respondent's management that they would service
their customers after the hearing As found by the Trial Examiner,
employee Hart testified on direct examination that he had finished three of
his five scheduled service calls before the hearing However, on
cross-examination, he testified that he completed one of three scheduled
service calls prior to the hearing The testimony on cross-examination
conforms with a stipulation entered into by the parties
We find, in agreement with the Trial Examiner, that the Hearing
Officer in the representation case did not excuse the discriminatees from
attending the December 5 hearing Inasmuch as the Respondent concedes
that the discriminatees were not released from their subpenas, we find it
unnecessary to pass on the Trial Examiner's additional finding that the
Hearing Officer did not have the legal competency to release said
employees from their subpoenas
A Background
In the fall of 1968, the Union undertook to organize
the television and appliance repair and service employees
at Respondent's Yakima store On November 13, 1968,
the Union filed with the Board a representation petition
A hearing was scheduled for December 5 at I p m
Underlying the Union's representation petition were
authorization cards signed on November 6, 1968, by a
majority of employees of Respondent's appliance repair
department Counsel for the Union served subpoenas ad
testificandum on four of the five alleged discnminatees on
the evening of December 4 and one the following morning,
the day of the hearing Respondent, Montgomery Ward,
also referred to herein as Wards, did not know their
employees were served with subpenas until 8 a.m on
December 5, the day of the hearing, when one of the
employees so notified Elwyn Kazee, service department
manager, the immediate supervisor of the employees
Wards, not knowing of the service of the subpenas, had
scheduled a full day of house calls for their service
technicians on the day of the hearing
As soon as it was ascertained that all of Ward's field
servicemen had been subpenaed, Kazee collected the
subpenas and took them to Donald D. Rainwater, the
179 NLRB No. 113
MONTGOMERY WARD & CO., INC. 687
store manager and attorney Stephen M. Conhain, Ward's
labor relations manager for the Western Division, who
was in Yakima on December 5 to represent the company
at the representation hearing. After consulting with
Rainwater and Conhain, Kazee reported back to the
subpoenaed employees that they need not honor the
subpenas When the employees expressed doubts at such
advice, Kazee arranged a meeting between the employees
and Conham. At approximately 9 a.m., Conhain spoke to
the assembled employees and assured them it would not
be necessary for them to appear at the hearing that
afternoon and that he would take care of the matter at the
time of the hearing.
After Conhain left, the men got together and decided
that it would be advisable for them because they had been
served personally with subpenas, to attend the Labor
Board Hearing scheduled for 1 p in. that afternoon. Since
there was approximately four hours until the hearing, the
employees made as many of their scheduled service calls
as they could before the hearing commenced.
When the hearing began at 1.30 p.m. Respondent's
Counsel, Attorney Conham, requested a continuance
because of the short notice given them. The Union's
counsel opposed the Company's motion, stating he would
not release the employees whom he had subpoenaed.
When the hearing officer stated he had no authority to
release the witnesses subpenaed by the Union without the
consent of the Union's attorney, both Conhain and
Rainwater walked out of the hearing at 2:30 p.m. In
accordance with the hearing officer's ruling, the employees
remained at the hearing and each of them testified in the
absence of Respondent's counsel.
When the hearing concluded at 4 p.m. most of the
alleged discriminatees returned to the service department
intending to call upon the remainder of their customers
after hours and to consult with their service department
manager, Kazee However, when the men returned, Kazee
had left for the day and their work orders had been
removed from their boxes. As a result they arranged with
the service clerks of the appliance repair department to
reschedule for the next day those customers whom the
employees were unable to see because of their attendance
at the hearing.
The morning following the hearing, December 6,
Rainwater called four of the five alleged discriminatees
into his office and asked them why they had remained at
the hearing when they had been assured that it was not
necessary for them to attend. Rainwater also asked these
employees whether any pressure had been exerted upon
them by counsel for the Union, in order to compel them
to attend and remain at the hearing. All responded that
there was no such pressure exerted upon them. Then,
addressing the employees as a group, Rainwater told them
that they were "suspended." Later the same day, they
were notified by Respondent that they were discharged.
A charge was filed that same day and a complaint
issued on March 4, 1969, alleging violations of Section
8(a)(1), (3) and (4) of the National Labor Relations Act,
as amended, 29 U.S.C. Sec. 151 et seq., hereinafter
referred to as the Act.
B. Testimony
Dennis O'Keefe was employed by Respondent as an
electronic technician for approximately 3 years until his
discharge, along with the other four alleged
discriminatees, on December 6, 1968. He signed a
Teamsters union authorization card on November 6, 1968.
While he was at the Teamsters' office on the evening of
December 4, he was served a subpena to appear at the
hearing the following day at 1 p.m Shortly after reporting
for work at 8:15 am. the following morning, he
voluntarily showed the subpena he had received the
previous evening to Kazee. Present at the same time were
the other discriminatees: Fuerst, Hert, Stowell and Crow,
who also voluntarily handed their subpenas to Kazee who
then turned them over to Rainwater. O'Keefe testified
that after the men were advised by Conham that it was
not necessary for them to attend the Labor Board hearing
they got together and decided to disregard Conhain's
advise, and to honor the subpenas. O'Keefe then left the
store and serviced two of the customers he was scheduled
to call upon that day. He worked until noon and then
went to the hearing O'Keefe's testimony continues as
follows. Attorney Conhain moved that three of the
employees remain at the hearing and that the others be
released to service their customers, with the understanding
that they would return at a future date to testify. When an
objection to this motion was made, by the Union counsel,
and sustained by the hearing officer, Conhain withdrew
from the hearing. All the employee-witnesses testified
after Conhain left O'Keefe testified that he stayed at the
hearing because "I had not been released from the
subpoena."
After the hearing concluded, O'Keefe testified he "went
back to work. I punched the time card, I went to the
office, and there was nobody there to authorize me to go
back to work and do my service orders that were
remaining. I talked to the girls [in the service
department]. The work orders were found and customers
were supposedly supposed to be called and my work was
supposed to be scheduled for the next day."
O'Keefe also testified that while the men were at the
hearing it was agreed between them and Rainwater and
Conhain that they would service their customers after the
hearing finished. When the men returned to the service
department, testified O'Keefe, Kazee had left for the day
and the only persons present were the service clerks who
called his customers and rescheduled the work for the next
day.
O'Keefe testified that when he arrived at work the
following day, the clerks told him that there was no work
scheduled for him for that day. Shortly thereafter, at or
about 8:15 a in., the men were called into Manager
Rainwater's office individually. O'Keefe's testimony
continues as follows: Rainwater called him into his office
and "asked me why I had not left the hearing when I was
released from the subpoena and gone back to work and
serviced my customers, and I told him that, as far as I
was concerned I hadn't been released from the subpoena,
and I decided to stay at the hearing."
O'Keefe testified that after each of the men had been
called into Rainwater's office individually, they were then
assembled and addressed as a group by Rainwater. It was
then that Rainwater told them that they were suspended,
whereupon O'Keefe asked him if that meant that the men
were fired. Rainwater answered in the negative stating
that they were suspended and that they would be notified
when to return to work.
The men then proceeded to the home of Charles
Stowell, one of the alleged discriminatees, and while they
were there, the wife of William Hert, another
discriminatee, phoned Stowell and informed him that the
Respondent had telephoned and advised her that all' five
alleged discriminatees had been fired and that they were
to go to the store and pick up their pay. All five
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dischargees returned to the store and were paid the wages
owing them
O'Keefe testified that he went down to the store on
three occasions the following week and told Kazee that he
was ready, willing and able to report for work' O'Keefe's
testimony continues that on the first occasion when he
spoke to Kazee, the latter told him there was no work, the
same thing was told him on the second occasion when he
asked to be reinstated and the third time, instead of going
to the store, he telephoned Kazee and identified himself by
telling Kazee that it was Dennis O'Keefe phoning,
whereupon Kazee said "he didn't know any Dennis
O'Keefe " On one of the occasions when he spoke to
Kazee, O'Keefe testified that Kazee said "that we had
sure stabbed him in the back and it would be the last time
we would ever .. " O'Keefe also testified that on one of
these three occasions, Kazee told him "that I should go
down to the Bon Marche . Go to work down at the
Bon Marche . he was referring to the service
department down there which is Teamsters "'
When O'Keefe was questioned in the present proceeding
by union counsel, he testified that at the proceeding on
December 5, Davies, counsel for the Union, told the
hearing officer that he (hearing officer) did not have the
authority to release the employees from the subpenas.
O'Keefe testified that it was shortly after the union
counsel made this statement, and the hearing officer
agreed, that Attorney Conhain and Manager Rainwater
left the hearing
On cross-examination by Respondent's counsel in the
present proceeding, O'Keefe testified that the hearing
officer stated that three of the employees who were
subpenaed were to remain at the hearing but the other
employees were excused subject to their appearing at a
later date It was then O'Keefe testified that Davies, union
counsel, told the hearing officer that he did not have the
authority to excuse these witnesses from the subpenas.
Thereupon, continues his testimony, the hearing officer
telephoned the Labor Board's Regional Office 'for
instructions, and was advised that Davies' statement, to
him was correct. Then the hearing officer, testified
O'Keefe, told the employees that they would have to
remain at the hearing until they were released from the
subpenas. O'Keefe testified , that when he heard this
colloquy, he realized that he would have to remain at the
hearing O'Keefe also testified on cross-examination that
Rainwater informed the men that the reason they were
being suspended was because they had failed to service
their customers but that "he would advise us as to when
to return to work " O'Keefe also testified on
cross-examination that after he was discharged, he went to
the State Unemployment Compensation office and told
the clerk who filled out his application form for
unemployment compensation that he had been terminated
because of his union activities but the company had told
him that he was terminated for failure to service his
customers
'Attorney Conhain testified that on December 20, 1968, he made an
offer to Fred Wehde, a union official of the Yakima Teamsters Local, to
reinstate the employees but that Respondent would not agree to pay the
dischargees any backpay and provided further that the Union would agree
to have the representation case reopened in order that the Respondent
could present its side of the case The Union refused unless the agreement
included backpay for,the alleged discriminatees
'This was an unmistakable' reference to Kazee telling O'Keefe that he
should apply for a job at the Bon Marche store in Yakima, which had an
appliance service department whose employees are members of the
Teamsters Union
On redirect examination, O'Keefe testified that when he
was called into Rainwater's office the morning after the
hearing and questioned that he was not advised by
Rainwater at that time that he did not have to say
anything if he did not want to
Charles Stowell has been employed by the Respondent
since 1958 as an electronic repairman He signed a
Teamsters' authorization card on November 6, 1968 He
corroborated O'Keefe's , testimony He augmented
O'Keefe's testimony stating that on the morning of the
hearing that the employees of the service department
"were informed [by Conhain] that we didn't have to honor
the subpoenas, that Mr Conhain would go down and
answer for us " Stowell left the store and made two
service calls on customers and then went to the, hearing
His testimony continues as follows when he arrived at the
courthouse, Rainwater asked him why he was at the
hearing, whereupon Stowell showed him his subpena
After the hearing, he returned to the store about 4.40 p m
and tried to locate Kazee, his supervisor, "but he wasn't
in and the work orders that he had not been able to reach
because of going to the hearing were rescheduled by the
service clerks for the following morning " The service
clerks called the customers and told them Stowell would
be at their homes the following morning.
The following morning, Rainwater called him into his
office and asked him "what we expected to gain by joining
a union, and if the union had made any promises as to
changes in any system or wage scale . ' I said there had
been no promises made "
Rainwater then assembled the employees and, testified
Stowell, he "told us that we had disregarded the
customers in favor of the subpoenas and due to this
disregard, he said, you are all under, suspension until
further notice
Stowell testified that the five alleged discriminatees
then went to his home and while there they received notice
that they had been fired and that they were to come to the
store to pick up their pay When he arrived at the store
and received his pay, Rainwater called him into his office
and told him that since he was eligible to retire on March
4, he would remain in a suspended rather than discharged
status in order to qualify and receive retirement benefits
Stowell has been receiving a pension since March 4
Kenneth Fuerst was employed by Respondent in 1965,
to perform major appliance repairs Fuerst signed a
Teamster authorization card on November 6, 1968, as did
all of the five alleged discriminatees. Fuerst's testimony
corroborated O'Keefe and Stowell In addition, Fuerst
testified that when he gave Kazee his , subpena on
December 5, Kazee asked him "what he thought we would
gain by going to the Union and he also asked me if they
had promised us anything, and I told him no that they
hadn't " Fuerst also testified that Conhain, the company
attorney, had told the service department employees "that
we didn't have to attend [the hearing], that they would
take care of it for us . . They told us to go ahead and
go to work " Fuerst.then left the shop and serviced those
customers that he was able to get to before noon, at which
time he left for the hearing Fuerst also testified that
about I t that morning, he telephoned Kazee at the store
and informed him that he was going to attend the hearing
and that he would not be able to finish the service calls
scheduled for that afternoon. Kazee told him to call the
customers and to so inform them, which Fuerst did
Fuerst's testimony continues that Kazee "asked me about
company loyalty, where my company loyalty was, and I
don't really recall just exactly the answer I gave him."
MONTGOMERY WARD & CO., INC.
Fuerst testified that during the prehearing telephone
conversation, Kazee "told me again that we would be
advised not to go [to the hearing] and that he asked me if
I was going to and I told him I was, and this is the reason
that he asked me where my company loyalty was "
Fuerst's testimony continues as follows. Rainwater
called him into his office the morning following the
hearing and "asked me if the union had promised us
anything, and I told him that they had not He asked me
why we had gone to the union and I said that we were
dissatisfied with the rating program, that we were paid
under, there were too many things that involved our pay
scale, that the service man actually had no control over "
It was shortly thereafter, testified Fuerst, that Rainwater
told all service department repairmen that they were
suspended because they "had neglected the customers, that
we hadn't thought of the customers, that we had gone to
the hearing instead of servicing the customers "
The following week, testified Fuerst, he went to the
store on three different occasions to request that he be
reinstated to his former job On one of these occasions
Kazee told him, according to Fuerst, "that we had
stabbed him in the back for going to the union and he
asked if this was the treatment he deserved for taking care
of us when we had family problems and other needs in our
personal lives "
William Hert was employed by the Respondent as an
appliance technician for over 5 years He also signed an
authorization card for the Teamsters Union on the same
day as the other four dischargees Hert's testimony
corroborated that of O'Keefe, Stowell and Fuerst in all its
substantive details Hert testified that he had five service
calls scheduled for December 5, and that he finished three
of them before going to the hearing He testified that
when he arrived at the courthouse, Rainwater inquired of
all the employees why they had decided to attend the
hearing when Conhain, the company's attorney, had
advised them that morning" "that we didn't have to appear
and that he would appear for us, and then he asked me
why I was dissatisfied and I told him that I was
dissatisfied on the work program that we were working
under " He testified that after the hearing ended, he
returned to the repair, department with the intention of
servicing the two customers whom he had been scheduled
to call upon that afternoon Hert testified that when he
learned that Kazee had already left for the day, and his
work orders were removed from his mailbox there was
nothing for him to do but to go home
Robert L Crow worked for the Respondent for over
four years as 'an applicance repairman. He also signed a
union authorization =car'd on November 6, 1958. He
received his subpoena on the morning of December 5, the
day of the hearing Crow's testimony corroborated that of
the four witnesses whose testimony is set out above. Crow
testified that after the hearing concluded, he called on one
of his customers He testified that after he was discharged
that his supervisor, Kazee, said to' him "You have
nothing to gain by this and everything to lose " When he
was examined by union counsel as to the reason for his
going to and remaining at'the hearing, he testified, "that
we were there for the purpose of testimony because of the
subpoenas and we decided' to stay [at the hearing] as a
group and give testim'ony."
Stephen M Conhain, attorney and labor relations
manager of Ward's Western Division, testified that the
first time any of Respondent officials learned all of the
service technicians had been subpoenaed to attend the
December 5 representation hearing was about 8 a m. the
689
same day. When he was advised by Kazee, the service
department manager, that all of the repairmen had a full
schedule for that day, Conhain explained to the employees
that it was a highly unusual procedure for subpenas to be
served the day before the date of a hearing Conhain
advised them that 'their attending the hearing would
completely disrupt the repair schedule for that day. He
told the men that he would appear at the hearing and
request a continuance He stated that the repairmen
should make their scheduled service calls and that he
would take full responsibility for their not responding to
the subpenas
Shortly thereafter, Kazee informed Conhain that the
employees felt nervous about not honoring the subpenas
since their names appeared on them Again Conhain
spoke to all the men telling them, he testified, that he
"had absolutely no objection to all of them being there [at
the hearing], that if we could get a new date for the
hearing in the future we would simply not schedule any
outside service calls for that day and as long as the
hearing might take they could all be there I asked them
in conclusion if this was O.K. with them, and they either
said or nodded their agreement with this."
Conhain testified that he assumed after speaking to the
repairmen they were going out to perform their full day's
schedule of calling upon customers. When he arrived at
the hearing, he saw 7 to 9 of the repairmen present His
testimony continues as follows he advised the hearing
officer in an off-the-record discussion "that we were in a
terrible dilemma, that all of the men in our entire service
unit had been served at the last minute, that we had an
undetermined number of customers waiting in their homes
for service, and that unless we could continue the hearing
'til a later date I would not personally stay there and go
on with the hearing, that I intended to leave with Mr.
Rainwater, [Store Manager] who I had brought with me,
and make sure that every customer was notified that they
would not receive any service from Montgomery Ward
that day." On cross-examination, it was elicited that it
was not necessary for Conh'ain and Rainwater to leave the
hearing as a telephone call from the courthouse to Kazee,
telling him to notify the customers would have been
sufficient Conhain also admitted he knew that some of
the repairmen had notified their customers that they
would be unable to call on them until the next day.
When the hearing commenced Conhain repeated for the
record what he had stated off the record, namely. "That
all of the men in our service unit were sitting in that room
rather than, performing or servicing their customers. And, I
stated on the record that I would be unable to continue to
remain at the hearing unless something were done about
the fact that we were literally being crippled for purposes
of performing service that day. And I suggested that we
give consideration to continuing the hearing to a later date
when all the men would not be scheduled for outside calls
and could all be persent " Attorney Davies, Union
counsel, then replied, stating he had polled all the
employees who were present at the hearing as to whether
or not they preferred to leave or remain and they stated
they wished to remain at the hearing. Then dates to which
the hearing might be reconvened were discussed and
Conhain suggested "early January, 1969 " This matter
was not resolved. An attempt was made by counsel and
the hearing officer to reach agreement as to who among
the employees should remain at the hearing to, testify and
who should be excused until a later date, but , no
agreement could be reached, whereupon Conhain and
69 0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rainwater walked out of the hearing '
Later that afternoon Conhain asked Rainwater to
ascertain from' the employees "whether the refusal of the
men to leave and service'their customers when told to do
so by the Hearing Officer was their own decision or
whether in their meeting in the other room with counsel
[for the Union] they'were put under some form of duress
or ordered by counsel to remain So I told Mr. Rainwater
to meet individually with each of the men involved and to
ask them dust that, did they remain because they wanted
to remain or did they remain because they were advised or
told by counsel that they should remain And Mr
Rainwater did this the following day " Conhain described
Rainwater's reaction to the repairman's failure to leave
the hearing as being "extremely upset and angry "
The following day, December 6, Conhain testified he
spoke to Rainwater and the latter told him, "that each of
the men individually told him that it was their own
decision to remain, that they were not ordered•to remain
by counsel. In fact, counsel had ,instructed them they
could go if they wanted to, but they did not have to
Based upon this answer and further discussion on the
phone I then instructed him that he could proceed to
suspend each of the men involved indefinitely, and that he
would hear further from my office when a final decision
as to their relationship with the Company had been
made " Conhatn testified-that approximately an hour later
and after having discussed the matter with the vice
president of Montgomery Wards whose office is in
Chicago, .he notified Rainwater to -discharge the five
alleged discriminatees.°
On cross-examination by the General Counsel's
representative, Conhain when asked what he told-the
repairmen on the morning of the day of the hearing with
respect to the subpenas served on, them, answered as
follows
I told them that we were caught short by the lack of
notice in receipt of these subpoenas, that, we would be
paralyzed as far as any work was concerned in this
department for the day, and that if they would agree to
let me go down and ask for a new date for the hearing
that I would take full responsibility for their not
appearing, and was this, 0 K with them They said it
was - • ,
Donald D. Rainwater , manager of Ward's Yakima
store, was notified on November 11, 1968, by the Seattle
Regional Office that a hearing would be held on
December 5, to determine whether the repair service
technicians in the Yakima store constituted an appropriate
bargaining unit. Conhatn, whose office is an Oakland,
California, was in Rainwater's' office, on the morning of
December 5, when Kazee, the service ' department
manager, came in and told Rainwater and Conhain that
all of the repairmen had been served with subpoenas
Rainwater's testimony continues as follows Conhain then
suggested to Rainwater that `Kazee explain to. the men
that since they had received such short notice to appear at
the hearing that they need not attend. He also suggested
that Kazee indicate that the repair department had
schedules 'to meet for that day and it was important that
those schedules be met and the customers serviced
Finally, he suggested that Kazee explain that the men had
'Conhain admitted on cross-examination that union counsel never agreed
to release any of the employees he had served with subpoenas
'Stowell was placed in suspended status until March 4 , 1969, in order for
him to qualify for a pension which he subsequently received on that date
See the last paragraph in section concerning Stowell under section II, B,
supra.
nothing to be concerned about because Conhain would
look into the matter of the subpoenas Kazee spoke to the
men "and then reported to Rainwater and Conhain, that
"the men didn't either understand or fully believe that
they were protected by Mr Conhain concerning the
subpoenas." It was then that Conham decided he should
speak to the men himself ' See the second paragraph
under section II, B, supra
Rainwater testified that when he walked into the
hearing room, and saw all the repair men there, that he
was surprised as "I thought they fully understood that
we'would do something about the subpoenas" Rainwater
testified that while he was in the hearing room and the
attorneys and hearing officer were' 'conferring, that he
spoke to the men and "someone behind me mentioned like
'I guess we're all going to get fired ' I think I said, 'No
you're not all 'going to get fired, but what's this all about9
You guys had an opportunity, you didn't have to be here
I don't know if I said, didn't you fully understand'we were
going to protect you. My' concern at this point,' frankly,
here it was a little after I [one] then and,we still hadn't
taken care of a customer, although I found out later a
couple of the guys did make some calls but we had over
20 customers that didn't get serviced that day."
When Rainwater was 'asked why he and Conhain
walked-out of the hearing, he answered"as follows "Well,
it was apparent the men were not going to, do anything
about the customers and it just got to the point if they
wanted to sit there --and these guys were advised earlier
this was their right ' when we would try to take' care of
subpoenas, it was their right if they wanted to be there
.they could be there ' But'again here customers were,' now
we're at about 2 30 or 3 and still 'no 'service had been
taken care of these customers and they were calling in
'wanting to know when we were going to be there " .
When, Rainwater admitted Kazee could have'notified
the customers, he was asked why he'did not instruct him
to do so, he replied "At about that stage I didn't
particularly care'if we stayed at the hearing or not .,. I
was ' a little more concerned about taking care of our
customers ` As 'far as I was concerned the guys at that
stage could care less Somebody had to take care of them
I was a little upset myself' . You talk about loyalties
and things like that, but by God,, when you get paid a
salary' to do a job you owe' something, maybe you don't
call it loyalty, but by God, you should be doing at least
what you're getting paid to do " '
The morning following' the hearing, at or about 8 a.m.,
Rainwater called the service technicians individually Into
his office In stating his reason for calling them in, he
testified, "Basically, I wanted to be sure in my own mind
that there was no pressure, put upon them to stay at the
hearing, whether the attorney for the union went out and
asked the men to go with them I thought perhaps it was
possible that undue pressure was extended at the time and
they wouldn't feel they were at liberty to leave Of course
if, this were the case it would put a little different light
over it. I asked them if the union attorney or the
union representative had put any pressure or forced them
in any way to make them feel that they should be at the
hearing [They answered] No, there was no, pressure In
fact, they voted,'or decided together that they would•sit
through this thing [the hearing] and see it through "
After Rainwater talked. individually with each man in
his 'office the morning after the hearing;•he then spoke to
'Rainwater acknowledged , some of the, , servicemen did notify their
customers before they went to the hearing and that a "couple" of the
employees serviced their customers after the hearing Tr p 281
MONTGOMERY WARD & CO., INC. 691
them as a group and he testified, "that under the
circumstances it was quite clear in my mind that they
didn't feel that they had any obligation to Ward's
customers They failed to take care of them and under the
circumstances, that at this time, at that moment, they
were suspended . • I then called Mr Conham . and
I told him what had come out in these separate interviews,
that the men as a group said that they, were under no
duress, no pressure, they went through it all knowing full
well what was happening and [Conhain] said, `then I think
we should suspend them ', I said O.K , I'll call them back
in and suspend them. He said, `You let me know when
you have taken -care of it ' I called them back in and told
them they were suspended, and got a hold of Mr Conhain
again Mr Conhain said, `I'll have to get back with you
concerning this disregard for servicing the customers
We'll see if it's going to be a suspension or what's going
to happen' . [Conhain] asked [me] what I would like to
do, [and I said], Fire them." Two or three -hours later the
same day, on December 6, at a time when the men had
already left the store after they were notified they were
suspended, continues Rainwater's testimony, "They were
told by phone that they were terminated, no longer
employees."
Rainwater testified that he had a prepared statement
which he read to the five discharged servicemen. when they
came to the store for their pay after they were fired "You
men fully realize that you did not have to stay during the
hearing, you were excused. In my mind this proved that it
was complete diregard for the customer service of Ward's
customers, and as this has proven out true I don't think
we need this type of person in our organization Therefore
you are all terminated " After Rainwater read this
statement to them, he testified that some of the men said
that "they didn't think they were going to be released,"
because "they were going to come back and take care of
the customers or we could have taken care of them that
night
Rainwater also testified that he said to Stowell, one of
the alleged discriminatees, that considering the number of
years he had with the Company and with only a few
months to go before he was eligible for a pension, "why
would you want to be involved with the union, with your
retirement coming up') Stowell replied, according to
Rainwater, "I kind. of felt I, had to go along with the
boys."
On cross-examination of Rainwater, the following
appears in the transcript
Q Did Mr Conham advise the men not to appear at
the hearings
A He said they need not appear, he would take care
of the subpoenas
It was elicited that when some of the alleged
discriminatees returned to Respondent's service
department after the hearing ended, intending to service
the remainder of their customers scheduled for appliance
"repairs that day, that they were unable to do so because
all of their work orders had been pulled from their boxes
When Rainwater was asked who had ordered this, he
answered that he did not give the order nor does he know
who did Although the repairmen returned to the service
department on the day of the hearing before Kazee, their
supervisor's workday had ended. they found he had already
left for the day When Rainwater was asked why Kazee
left work early, he disclaimed any knowledge as to the
reason for Kazee leaving early on the day of'the hearing
Elwin Kazee is Respondent's repair service manager for
the Yakima store When he was asked what hours he
worked, he answered from 8 a m. to 4.45. When he was
asked at what time he left the .store on December 5, he
testified between 4 and 5 p.m. and then changed this
stating he left at 4 45 p m He testified that on
instructions from Conhain, he told the repairmen in his
department that Conhain and Rainwater "would be fully
responsible for the subpoenas" and "for them to go ahead
about their work They were dissatisfied, with what I
said They felt they should honor the subpoenas And so I
asked them if they would like to hear from the manager
and, Mr Conhain themselves Mr Conhain talked to
them that he would be personally responsible for the
subpoenas and that they did not have to go, that 'they
could go to work and he would be responsible for them .
Then we felt that the men had agreed and everybody
,went back to-work their service work, that-is they
went out on their calls " Kazee's' testimony continued as
follows Fuerst [an alleged discriminatee] phoned around
noon and "he said he had a few calls left over and that he
was going to attend the hearing and what should-he adci
about the calls I told him that I thought he should
[telephone]the customers - I told him I thought that it
had been arranged that he wasn't to go, that he wasn't
going to go He said he thought he should attend
anyway
Kazee testified that he -believed there was 10 to 12
afternoon customer service calls that were not made on
December 5, although he was able to notify four
customers that their service calls would be rescheduled
Rainwater testified there were about 20 scheduled service
calls that were not made that day. It was stipulated that
Fuerst had five scheduled calls for Thursday, December 5,
of which he completed one customer service call, Crow,
six calls of which he completed five, Hert, three calls,
completed one, Stowell, six calls, completed two, and
O'Keefe, eight calls, completed two
Orville W Turnbaugh, a field examiner for the' Seattle
Regional Office of the Board, was the hearing officer in
the representation proceeding (l9-RC-4968) He testified
he was under the impression at one stage, of. the
proceedings that the parties were in substantial agreement
as to who among the subpenaed employees were to remain
to testify and who were to be excused until a later date
However, he testified, it became apparent when-he and the
parties' counsel went off the record that his impression
was incorrect and that they were, not in agreement This
was confirmed, testified Turnbaugh, when Counsel for the
Union stated that all of the subpoenaed employees were to
remain The hearing officer testified that he did not recall
any off-the-record discussion in which he stated he was
prepared to hear testimony and then adjourn the hearing
to a later date at which time he would hear the remaining
witnesses who had not testified. Nor, testified Mr
Turnbaugh, did he recall any one of the subpenaed
employees stating they were confused as to whether or not
they were excused and could leave the hearing - He
testified that Union Counsel did represent to him that he
[Turnbaugh] had no authority to release those employees
that he had served with subpoenas This, testified
Turnbaugh, was confirmed by the Board's Regional Office
when he telephoned for guidance. Turnbaugh also testified
that he did not state off-the-record that it would be a fair
accomodation of the interests of the parties to hear the
testimony of three named employees and excuse the other
repairmen in order that they might service their
customers 6 He also testified that he never told the
`Respondent states in its brief that The Hearing Officer decided to
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in an off-the-record statement that they were
released from their subpoenas
C Contentions
The General Counsel's representative contends that the
Respondent's hostility to the Union, the timing of the
suspensions and the terminations of the alleged
discriminatees, occurring after knowledge by Respondent
that they supported the Union, clearly shows that they
were terminated because of their activity in behalf of and
their support of the Union and because they honored their
subpenas and testified at the representation hearing,
The Union's Counsel represents that there is no
requirement that a subpena must be served a reasonable
time before the date on which a hearing is scheduled
Respondent's counsel claims that the company had no
intention of obstructing the processes of the Board and
stood ready to proceed with the hearing if a continuance
could be arranged It is Ward's position that the five
alleged discriminatees were discharged solely because,
after having been excused, subject to recall by the hearing
officer, they chose to remain in the hearing room, rather
than return to service their customers Respondent's
Counsel agrees that the attendance of the men at the
hearing, under subpoena, constituted a protected activity
but nevertheless, he argues that the hearing officer
released the employees from the subpena This, contends
Respondent's counsel, demonstrates that Ward's had
adequate grounds for terminating the five alleged
discriminatees Respondent concedes, however, that this is
not a sufficient defense, if the evidence reveals that the
real reason for the terminations was discriminatory.
D Credibility, Analysis, and Conclusions
The witnesses for the General Counsel and Respondent
are in conflict as to some of the salient issues in this
proceeding Nevertheless, after observing the witnesses,
analyzing the record as a whole and inferences to be
drawn therefrom, this conflict in testimony is resolved in
favor of the versions told by the General Counsel's
witnesses. The crediting of General Counsel's witnesses is
based upon the demeanor and deportment of the witnesses
in testifying, an appraisal of the substantial evidence as a
whole and the General Counsel's witnesses generally
consistent testimony which logically conformed to the
uncontroverted chronological sequence of events and
attendant circumstances They appeared to be truthful
witnesses and their stories were not appreciably shaken by
able counsel for the Respondent who vigorously and
thoroughly cross-examined them
Conversely, the record does not support either
Conhain's or Rainwater's contention that five of the eight
employees were excused by the hearing officer from
attendance at the December 5 hearing On the contrary,
the record shows that the hearing officer, after receiving
phoned instructions from the Seattle Regional Office,
conceded he had no authority to release the witnesses
from their subpoenas
Nor does the Respondent's contention that the
discriminatees were discharged only for their voluntary
insistance on remaining at the hearing at the unwarranted
expense of their customers ring true. There is ample
evidence to indicate the union animus of Ward's
management The attempt to forestall the appearance of
the discriminatees with assurances that Conhain would
proceed with the testimony of three of the eight men and excused the other
five subject to recall "
protect them by requesting a continuance, is perhaps
subject to equivocal interpretation but when viewed
together with other statements and actions of
management, it preponderates to a conclusion that delay
and obstruction rather than genuine concern for customer
service was uppermost in the minds of Rainwater and
Conhain. This belief is enforced by Rainwater and
Conhain walking out of the representation hearing Their
naked and self-professed assertion for doing so, namely,
their consternation occasioned by the customers not being
serviced does not seem sincere Rainwater admitted he
could easily have telephoned to Kazee to have the missed
service calls rescheduled and for several days after the
firings, Rainwater attempted to service customers with
two full-time and one part-time man by the name of
Sharp' Prior to the firings, he needed nine men to service
customers adequately. Moreover, when it is considered
that Respondent's witnesses contradicted themselves in
some material respects, these discrepancies are probative
in concluding that they were not to be credited. Kazee
conveniently had difficulty in recalling just when it was
that he left work on that day of the hearing and
Rainwater's testimony diverged in important respects
from the statement he gave a Board investigator on
January 23, 1969.
That proscribed reasons motivated Respondent's firing
of the five employees is further evidenced by the fact that
although the quality of their work was exemplary,
nevertheless, with the advent of the Union, to which
Respondent obviously was hostile, and its request that the
•Respondent Company recognize it as collective bargaining
agent of these employees, they were precipitately
discharged without prior warning that disciplinary action
was imminent. Such action on the part of an employer is
not natural. There was a striking disparity between
provocation and punishment When viewed in the light
that attendance at the hearing was a protected obligation
from which the employees were neither excused by the
hearing officer nor released by counsel for the Union, it is
believed that these asserted reasons for the discriminatees'
discharges were pretexts seized upon to conceal improper,
ulterior, and illegal motives Even if it were true that the
only reason for the discharges were that the employees
remained at the hearing, the discharges would be
discriminatory For a discharge is unlawful if protected
activity is "a cause without which the employee would not
have been discharged "8 If the conduct giving rise to the
employer's mistaken belief is itself protected activity, then
the employer's erroneous actions cannot justify the
discharges That Respondent acted in good faith is not
material where the activity for which the employees were
discharged, was actually protected by the Act To adopt
Respondent's view, would materially weaken the
guarantees of the Act, for the extent of employees'
protected rights would be made to vary with the state of
the employer's mind ° However, it is believed that there
was no good faith mistake in this case, but rather
antiunion opportunism
The employees' lack of "loyalty" apparently became
intolerable only after they had signed union cards and
designated the Union as their representative in proposed
'Another employee, James, was sick for a week after the discharges
'N L R B v Neuhoff Brothers Packers, Inc, 398 F 2d 640, 647 (C A
5)
IN L R B v Burnup & Sims, 379 U S 21, particularly fn 3, Rubin
Brothers , 99 NLRB 610, 611, Cusano v N L R B. 190 F 2d 898, 902, 903
(C A 3), Salt River Valley Water Users Assoc v N L R B , 206 F 2d
325, 329 (C A 9)
MONTGOMERY WARD & CO., INC. 693
negotiations with the Respondent It stretches credulity
too far to believe that there was merely a temporal
coincidential connection between the signing of the union
cards and their attendance at the Labor Board hearing
contrary to Respondent's advice and the abrupt firing next
day of five of the eight employees who attended the
hearing, at a time when there was plenty of work in the
service department ' ° It is believed that this unexplained
temporal coincidence vis-a-vis the principal events in this
case was really no coincidence at all, but rather part of a
deliberate effort by Respondent to abort the employees'
lawful organizational activities before they had progressed
too far toward fruition by discharging this hard-core
nucleus of union adherents
It is not without significance that Kazee told O'Keefe
when O'Keefe asked to be reinstated that Kazee replied, if
he wanted a job, he should apply to the Bon Marche store
in Yakima for a job, as their service department
employees were represented by the Union in this
proceeding " Significant also is Kazee's telling Fuerst
after he was fired that the discriminatees "had stabbed
him in the back by going to the Union. "
Furthermore, it is noteworthy that Kazee told Crow after
his discharge "You have nothing to gain by this and
everything to lose " Enlightening also is Rainwater's
testimony that when he arrived at the hearing and saw the
discriminatees there and not servicing their customers that
he was surprised and irritated as "I thought they fully
understood that . We would do something about the
subpoenas " Finally, Rainwater's comment to Stowell,
after he fired him, asking why he ever became "involved"
with the Union sheds light on his union animus These
statements on the part of responsible management
officials indicated what the company's ' attitude
undoubtedly was prior to their discharges ' Z
Although Respondent sought to justify the five alleged
discriminatees' discharges on the basis of their remaining
at the hearing after they were excused by the hearing
officer, the evidence does not reveal the factual validity of
this defense It is clear that the hearing officer neither had
the legal competency to release them from the subpoenas
nor does the record disclose that he did so Thus,
Respondent's inability to specify this as a basis for its
discharge of these five employees, leaves their
terminations unsatisfactorily explained
The record is devoid of any substantial evidence that
Respondent discharged these men for their failure to
service their customers after being excused by the hearing
officer (a contention which is contrary to the facts as
found herein), or that any other valid reason played any
role whatsoever Respondent's direct knowledge of its
employees' union activities and its union animus,
explicated above, and further evidenced by the incidents
related in the 8(a)(I) discussion, infra, the severity of its
reaction to these admittedly competent employees' refusal
to disobey the subpenas - all point to the inevitable
conclusion that the reasons advanced by the Respondent
for its discharging these employees were chosen ex post
facto to screen its true motive
"It is true that all eight service employees had signed union cards and
that Respondent discharged only five of them But Respondent cannot
exculpate itself by urging that it did not weed out all the Union adherents,
and the discrimination against the five here involved is no less on that
account Nachman Corp v NLRB B. 337 F 2d 421, 424 (C A 7),
N L R B v Nabors , 196 F 2d 272, 276 (C A 5), cert denied, 344 U S
865
"See seventh paragraph under section II, B, supra
"Angwell Curtain Co v N L R B , 192 F 2d 899 , 903 (C A 7)
It is concluded, therefore, that these employees were
discharged for union activity and for giving testimony at a
Labor Board representation hearing on December 5, 1968,
which Respondent acknowledges was protected activity.
Their discharges constituted an interference with, restraint
and coercion of Respondent's employees in the exercise of
their rights provided for in Section 7 of the Act, and was
discrimination in regard to their hire and tenure of
employment, thereby discouraging membership in the
Union in violation of Section 8(a)(3) and (4) of the Act."
E Alleged Violations of Section 8(a)(1)
It is also found that Respondent and its duly authorized
agents violated Section 8(a)(1) by interrogating employees
and not telling them that they did not have to answer the
questions if they did not want."
1. When Rainwater called Stowell into his office the
morning after the hearing and asked him without
disclosing the purpose of questioning him, "what we [the
employees] expected to gain by joining a union and if the
union had made any promises as to changes in any system
or wage scale
2 When Kazee who was Fuerst's immediate supervisor,
asked him on the morning of December 5, after he had
turned over to Kazee his subpoena. "What . we would
gain by going to the Union and also asked me if they had
promised us anything . .
3 When Fuerst telephoned Kazee on the morning of
the hearing while making a service call and told Kazee he
was going to the hearing whereupon Kazee "asked
[Fuerst] about company loyalty, where my company
loyalty was . and [Kazee] told [Fuerst] again that we
would be advised not to go ... " This was a veiled threat
implying reprisals 11
4. When Rainwater called Fuerst into his office the
morning after the hearing and asked him "if the Union
had promised us anything" and why he had gone to the
Union.
It is found also with respect to the finding that
Respondent coercively questioned some of the employees,
that such interrogation interferes with, restrains, or
coerces the employees in violation of the Act. "The
interrogation was coercive since it took place in an
atmosphere of active opposition to the Union, Bourne v
N L R B, 332 F 2d 47, 48, (C A. 2), without explanation
to the employees of the purpose of the questioning and
under circumstances indicating that it had no legitimate
purpose, Edward Fields Inc v N L R.B., 325 F 2d 754,
758-759 (C A 2), and was unaccompanied by any
assurances against reprisal. See N L.R B v. Lorbes Corp ,
345 F 2d 346, 348 (C A 2) "" The circumstances herein
closely parallel those set forth in the above quoted case,
and amply support a finding that Respondent coercively
'Section 8(a)(4), which forbids an employer to "discharge or otherwise
discriminate against any employee because he has filed charges or given
testimony" under the Act, has been interpreted, inter alia, to prevent the
Board's channels of information from being dried up by employer
intimidation of prospective witnesses In Great Lakes Screw Corp , 164
NLRB No 20, the Respondent was found guilty of "discouraging"
attendance at N L R B proceedings Cf Royal Mfg Co. 177 NLRB No
80 See also N L R B v Whitfield Pickle Co. 374 F 2d 576, 582-583
(C A 5)
"Struknes Construction Co , 165 NLRB No 102
"Great Lakes Screw Corp, 164 NLRB No 20, Sanco Piece Dye
Works, 38 NLRB 690 at 726, cited in Textile Workers (Personal
Products). 108 NLRB 743, 749, where it was held Respondent's efforts to
dissuade an employee from testifying was an unfair labor practice
"N L R B v Builders Supply Company of Houston, 410 F 2d 909 (C A,5)
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interrogated its employees in violation of Section 8(a)(1)
of the Act "
The excellent brief of the Respondent and the
authorities cited therein have been carefully considered
However, the Trial Examiner finds no occasion for
lengthening this decision by citing, distinguishing or
discussing them, because it is believed the controlling
reasons fors this decision have been sufficiently discussed
Moreover, Counsel's arguments are based on an
interpretation of the facts which are not shared by the
trier of these facts
by the Board as one of the most effective methods of
defeating the exercise by employees of their rights to
self-organization, the Trial Examiner is of the belief that
there is danger that the commission of unfair labor
practices generally is to be anticipated from Respondent's
unlawful conduct in 'the past. It will be recommended,
therefore, that Respondent be required to cease and'desist
from in any manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
in Section 7 of the Act 31
CONCLUSIONS OF LAW
III THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE,
The activities of the Respondent set forth above,
occurring in connection with the operations of the
Company described in section 1, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing the free now of
commerce
IV THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it will be recommended that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act
It is therefore recommended, that the Respondent
Company offer to the below-named discriminatees
immediate and full reinstatement to their former or
substantially equivalent positions18 without prejudice to
their seniority and other rights and privileges
Furthermore, it will. be recommended that Respondent
make the discriminatees named below whole for any loss
of pay incurred since their discharge, by reason of the
discrimination, by payment to them of a sum of money
equal to that which they normally would have earned as
wages from the date of their discharge to the date of the
Respondent's proper offer of reinstatement, less their net
earnings during said periods,19 the backpay to be
computed on a quarterly basis with interest at the rate of
6 percent per annum, shall be computed in the manner set
forth in F W Woolworth Company, 90 NLRB 289, and
Isis Plumbing & Heating Co , 138 NLRB 716.11 Whether
the discharges be viewed as a violation of Section .8(a)(3)
and/or 8(a)(4) is immaterial as, the remedies are
substantially the same 21
It is also recommended that Respondent make, available
to the Board or its agents, upon request, payroll and other
records to facilitate the checking of the amounts of
backpay due.
Inasmuch as the discharge of employees for-reasons of
union affiliation or concerted activity has-been regarded
"Under thelrule'of!N L R B v lBurnup & Sims, Inc, 379 U S 21, 23,
8(a)(i) is violated if it is shown that the discharged employee was at
the time engaged in a protected activity , that the employer knew it was
such, that the basis of the discharge was an alleged act of misconduct in
the course of that activity, and that the employee was not, in fact, guilty of
that misconduct "
"The Chase National Bank , 65 NLRB 827
"Crosset Lumber Co, 8 NLRB 440, Republic Steel Corp v N L.R B,
311US 7
"N L R B v Seven - Up Bottling Co. 344 U S 344
"Southern Bleaching & Print Works , inc , 118 NLRB 299, 300, fn 4
I By interfering with, restraining, and coercing
employees in the exercise of rights guaranteed them in
Section 7 of- the Act, Respondent has engaged in unfair
labor practices within the meaning 'of Section 8(a)(1) of
the Act
2 By laying off, discharging, and/or terminating the
employment of Robert Crow, Kenneth Fuerst, William A
Hert, Dennis O'Keefe, and Charles Stowell, as set forth
above, Respondent discriminated against them in regard
to their tenure of employment, and the terms and
conditions thereof, to discourage membership in the
Union and thereby engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(a)(3) of
the Act
3 By discharging the above-named employees because
they attended and gave testimony in Board proceedings,
the Respondent violated Section 8(a)(4) of the Act.
4 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
5 It is further recommended that the complaint be
dismissed insofar as it alleges violations of the Act other
than those found herein
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and the entire record in the case, and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, it is recommended that Respondent,
Montgomery Ward & Co , Incorporated, its officers,
agents, successors, and assigns, shall
I Cease and desist from
(a) Discouraging membership in the aforesaid Union, or
any other labor organization of its employees, by
discriminatorily discharging, or in any other manner
discriminating against any employee in regard to his hire,
tenure or any term or condition of employment
(b) Discouraging membership in Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Local No. 524,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Independent, or
any other labor organization of its members or by
discriminating in any other manner in regard to the hire
and tenure of employment or any term or condition of
employment
(c) Discharging or otherwise discriminating against
employees because they have given testimony under the
Act or threatening them if they did attend National Labor
Relations Board proceedings
(d) Coercively interrogating employees with respect to
their union activities and threatening them with reprisals
2 Take the following affirmative action which it is
found will effectuate the policies of the Act
"N L R B v Entwistle Mfg Co. 120 F 2d 532, 536 (C A 4)
MONTGOMERY WARD & CO., INC. 695
(a) Offer to Robert Crow, Kenneth Fuerst, William A.
Hert, Dennis O'Keefe, and Charles Stowell immediate,
full, and unconditional reinstatement to their former or
substantially equivalent positions, without prejudice to
their seniority or other rights, privileges, or working
conditions, and make them whole for any loss of earnings
they may have suffered by reason of the discrimination in
the manner set forth in the section hereof entitled "The
Remedy."
(b) Notify said discriminatees if presently serving in the
Armed Forces of the United States of their right to full
reinstatement upon application in accordance with
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces
(c) Preserve and, upon request, make available to the
National Labor Relations Board or its agents, for
examination and copying, all payroll records, social
security records, timecards, personnel records and reports,
and all other records necessary or useful to determine or
compute the amounts of backpay due, as herein provided.
(d) Post at Respondent's store in Yakima, Washington,
copies of the attached notice marked "Appendix."23
Copies of said notice, to be furnished by the Regional
Director for Region 19, shall, after being duly signed by
Respondent's representative, be posted by it immediately
upon receipt thereof, and be maintained by it for a period
of 60 consecutive days thereafter, in conspicuous places,
including all 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.
(e) Notify the aforesaid Regional Director, in writing,
within 20 days from the date of receipt of this Decision,
what steps it has taken to comply herewith.24
"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 . In the further
event that the Board 's Order is 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 is adopted by the Board,
this provision shall be modified to read . "Notify the Regional Director for
Region 19, in writing, within 10 days from the date of this Order, what
steps it 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
Relations Act, as amended, we hereby notify our
employees that:
After a hearing, during which all sides had the chance
to give evidence, it has been determined that this
Company has violated the National Labor Relations Act.
In order to remedy such conduct, we have been required
to post this notice.
The National Labor Relations Act gives all employees
these rights:
To engage in self-organization;
To form, join, or help unions;
To bargain collectively through a representative they
freely choose,
To act together for collective bargaining or other
mutual aid or protection; and
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with these
rights.
WE WILL immediately offer to reinstate Robert
Crow, Kenneth Fuerst, William A. Hert, Dennis
O'Keefe, and Charles Stowell, to their former or
substantially equivalent positions, without any change
in the seniority or other privileges which they enjoyed
before we discharged them, and we will pay them any
money which they may have lost as a result of our
discrimination against them.
WE WILL NOT discharge or otherwise discriminate
against any of our employees for testifying at NLRB
hearings.
WE WILL NOT ask our employees questions about
their union activities or threaten them.
WE WILL notify the above-named employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces
Dated By
MONTGOMERY WARD &
CO., INCORPORATED
(Employer)
(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 provisions, they may communicate
directly with the Board's Regional Office, Republic
Building, 10th Floor, 1511 Third Avenue, Seattle,
Washington 98101, Telephone 583-7473.