Montgomery Ward & Co., Inc.Download PDFNational Labor Relations Board - Board DecisionsDec 3, 1970186 N.L.R.B. 1022 (N.L.R.B. 1970) Copy Citation 1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Montgomery Ward & Co., Incorporated and Retail Clerks International Association, Local No. 698, Retail Clerks International Association, AFL-CIO. Case 8-CA-5690 December 3, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On August 13, 1970, Trial Examiner Myron S. Waks issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, 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 Trial Examiner's Decision and a supporting 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. 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 brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner, as modified below. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Montgomery Ward & Co., Incorpo- rated, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: In the notice attached as Appendix to the Trial Examiner's Decision, delete the following paragraph: WE WILL NOT threaten employees with reprisals for engaging in union activities. and substitute therefor the following paragraph: WE WILL NOT interrogate employees with respect to, or threaten employees with reprisals for engaging in, union activities. I These findings are based , in part , upon credibility determinations of the Trial Examiner to which the Respondent has excepted After careful review of the record , we conclude that these credibility findings are not contrary to the clear preponderance of all the relevant evidence Accordingly, we find no basis for disturbing these findings Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 363 (C A 3) In view of our Decision herein , we deny the Respondent 's motion for dismissal of the complaint We correct inadvertent incorrect dates in the Trial Examiner 's Decision as follows (a) In the first sentence of section C , we change "November 27" to "October 27" and "October 3" to "November 3", (b) in the fourth sentence of section D, we change the words "prior thereto" to "of 1969" TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MYRON S . WAKS, Trial Examiner : The complaint in this case alleges that the Respondent engaged in various acts in violation of Section 8(a)(l) of the Act' and, further, that Respondent discriminatorily cut the working hours and subsequently discharged employee Mary Wright because of her activities on behalf of the Union and thereby violated Section 8(a)(3) and ( 1) of the Act. The Union's charge and amended charge were filed on December 19, 1969,2 and January 19, 1970 , respectively ; the complaint was issued on January 23, 1970. Pursuant to notice , a hearing was held at Canton, Ohio, on March 17 and 18, 1970. All parties were represented and were afforded full opportunity to be heard, to examine and cross -examine witnesses , and to introduce evidence bearing on the issues. Upon the entire record3 in the case including my observation of the witnesses , and after due consideration of the briefs filed by the General Counsel and the Respondent,4 I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The pleadings establish and I find that Respondent, which is engaged in the operation of department stores throughout the United States, annually sells and distributes products at its Mellet Mall store valued in excess of $500,000 , and annually received goods valued in excess of $50,000 which are transported to its Mellet Mall store directly from States of the United States other than the State of Ohio. Upon these admitted facts, I find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and 2 (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The pleadings further establish and I find that Retail Clerks International Association , Local No. 698, Retail Clerks International Association , AFL-CIO, the charging i The complaint was amended at the hearing to allege additional violations of Sec 8(a)(l) 2 Unless otherwise indicated all dates referred to herein occurred in 1969 3 On July 2, 1970, a stipulation was received from the parties that Exh 3 entitled Termination Codes, should be marked Resp Exh . 2 and that what is marked as Resp Exh 2, entitled "Retail Departmental Utility Sheet," should be marked as Resp Exh 5 The stipulation is hereby entered as Trial Examiner's Exh I and the record is hereby corrected in accordance with the stipulation + Respondent 's motion to dismiss the complaint , made at the close of the hearing and upon which I reserved ruling, is disposed of in accordance with the decision set forth herein 186 NLRB No. 149 MONTGOMERY WARD & CO. 1023 party herein , is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Union's Organizing Campaign As a result of discussions among Respondent's employees in October, employee Mary Wright attempted on several occasions to contact the Union. In mid-November she was successful in arranging an appointment with a union representative. On November 21, employee Wright signed a union authorization card and at that time the union representative gave her other authorization cards to pass out to the employees in the store. Thereafter Wright solicited employees directly for the Union and enlisted employees in other departments to solicit for the Union. On Sunday, November 23, the Union held an organizational meeting for the employees at Carpenter's Hall in Canton; by November 25, Wright had received signed cards from about 40 employees of the Respondent B. Respondent's Response to the Organizing Activity Including the Alleged Interrogation of Employees In the latter part of November, Wright was working under the supervision of Ross Canary, the manager of departments 33 and 35, the men's and boy's furnishings department which included the men's boutique shop at the Respondent's Mellet Mall store. On the morning of November 25, Mary Wright received a telephone call at home from Canary, who was at the Respondent's store. There is no substantial dispute as to the substance of the telephone call After identifying himself, Canary read a memorandum to Wright that he had written out at the suggestion of the store manager, George Purple. Canary stated to Wright, "Mary, it has been called to my attention, that you are discussing outside activities, with other employees during working hours. I want to request that you do not discuss anything other than store business with any employee during your working hours or the employees' working hours." Wright who said she was not admitting anything asked Canary if he was referring to her union activities and Canary replied that he was. According to Wright, because Canary seemed upset, she stated to him that she was sorry if she had caused him any embarrass- ment and that it would not happen again; this ended the conversation. Also because Canary seemed upset and because she herself was upset by Canary's call, Wright telephoned Holderman, operations manager for the Respondent at the Mellet Mall store. Wright told Holderman that she "felt [she] had gotten Mr. Canary in trouble"; Holderman replied that she had not and stated further, "you are not in trouble, you were hired back on 5 This is based on the credited testimony of Wright, Canary's testimony to the extent it is inconsistent with Wright's is not credited Canary did not dispute the fact that he had a conversation with Wright that morning. Canary testified he may have discussed Wright's reduced hours with her and admitted that he suggested Wright speak with Purple, as to the latter, it was the thrust of Canary's testimony that it was because Wright was upset that led to this suggestion and that Wright had no basis for her concern that he was in trouble In view of the credited testimony of employee Graves set forth infra, I conclude that Canary was himself part-time and that is where you will stay for the duration." When Wright inquired what he meant, Holderman stated that he (lid not have time to discuss it and hung up. The next morning, November 26, when Mrs. Wright reported to the store she went to Canary's office in back of the stockroom to speak with him. When she arrived employee Graves, who had been speaking with Canary, left so that Wright could speak with him privately. Wright asked Canary why he had called, and Canary said he did not want to call but that "they had made him do it." Wright told Canary that she was sorry she had embarrassed him or put him in an embarrassing position in any way and asked why "they" were blaming him. Wright also told Canary that she would let "them" know that Canary knew nothing about this matter, that she would do anything at all including announcing this on the PA system or speaking to Purple, the store manager . Canary told Wright that what he had told her over the telephone was written down and that he had read it to her; Canary then showed her the following week's schedule posted on the back of the door and said, "Mary they made me cut your hours, this is all they will give you, you have the right not to work for them, you have the right to refuse them and I wouldn't blame you if you did." Wright told Canary she would work the hours posted, that she realized they wanted her to quit, and that she was not going to do it. Canary then asked her if she would be willing to talk to Purple and when she agreed, he told her he would arrange for it.5 Following this conversation Wright left for the cafeteria and then the cashier's office to get money to open her register. After Wright had left Canary's office, employee Graves returned and talked with Canary, who spoke to her about the "Union business." Canary stated to Graves, "You know about this Union business that's going on in the store " When Graves indicated she knew about it, Canary told her "I hope you girls haven't signed a card.... It has been placed in my lap that I am to stop any union activities in my department" Canary also told Graves that there had been people sent from Chicago to the store to stop union activities. He did not ask Graves if she was "in the Union."6 Wright returned from her errands and while she was fixing her register Canary came up to her and told her that Purple wanted to see her in his office immediately. When Wright arrived at Purple's office, the merchandising manager, William Bowman, who had been called in by Purple, was present and remained throughout Purple's talk with Wright. There is, in part, a conflict in the testimony as to what transpired during the conversation which followed. Wright's account of her interview is as follows. When Wright arrived, Purple stated that he had been advised by Canary that she wanted to talk to him. Wright replied that she (lid want to talk to him, that she wanted Purple to understand that Canary had nothing to do with, nor did he concerned about the matter and for this reason he asked her to speak to Purple 6 This is based on the credited testimony of Graves who impressed me as a more reliable witness than Canary , to the extent that Canary's testimony is inconsistent with that of Graves it is not credited Regarding the crediting of Graves' testimony, 1 also note that Graves appeared to be a disinterested witness , Graves testified under subpena , was still employed by the Respondent , and so far as this record discloses had no interest in the union activities which were occurring at the store 1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have any prior knowledge of, her union activities . Purple then asked her the reason for the employees' union activities. Purple then stated he understood there was a union meeting the previous Sunday evening and proceeded to question Wright concerning the employees present, whether the employees were mainly women, whether there were people at the meeting from other stores in the area, and the identity of the persons who had conducted the meeting. In response to his questions , Wright told Purple she would not tell him who was there; she did tell him there were men as well as women present and that union representatives had conducted the meeting. Purple ques- tioned her repeatedly as to which employees were there, and how many employees had signed cards. Purple then asked Wright if she had a union card; Wright left the meeting and returned with a card which she gave to Purple. Purple then continued to question Wright asking-if union representatives had ever been in the store , where and when she returned the signed cards, and which employees had signed cards. Wright refused to give Purple any employees' names; when Purple stated he wanted to help the people involved, Wright asked him if he would cut their hours as hers had been cut. Wright did tell Purple that two of the women involved had worked in other stores and belonged to a union but refused to give their names. Purple indicated he could learn this by looking through his files. Wright maintained the position that she would not violate any confidence but would speak to the other employees and if they wanted to make themselves known, she would ask them to do so. Purple also told Wright that the employees would be dissatisfied with a union because retail stores did not get along well with unions. Finally Purple asked Wright to talk to the employees and ask them to come forward or just give him their names, that he had to have their names by 5 o'clock. During the interview, Bowman advised Wright to give Purple the names and let Purple handle it personally. According to Wright the conversation with Purple lasted 2-1/2 hours. According to Wright on that same day she spoke with some other employees about openly declaring their union sympathy ; the employees expressed their unwillingness to have it known that they had signed cards. About 4 p.m. Purple came to the men's boutique shop, where Wright was working, and asked Wright if she had any names for him, Wright, unwilling to disclose that the employees she had talked with were unwilling to make themselves known, told Purple she had been unable to contact the employees. Purple asked her to reconsider and give him the employees' names, Wright would not do so but said she would try to have something for him by Friday, which was the next working day following the Thanksgiving holiday. Purple's account of his talk with Wright differed from hers in several significant aspects. According to Purple, Wright volunteered that there were several other employees as deeply involved in the Union 's activities as she, and that it was Wright who expressed the opinion that they should come forward and identify themselves as she had done. Furthermore , according to Purple, Wright stated her intention to talk to the other employees in an attempt to persuade them to come forward, and that if they would not do so, she told Purple she would give him their names. Purple denied that he had asked her for the names of the other employees who were soliciting or were otherwise active supporters of the Union . Purple admitted that he stated to Wright that it was his understanding there had been a union meeting and that he had asked her whether employees were present from the Respondent 's other two stores in the area. Purple also testified that he had questioned Wright's interest in the Union , drawing comparisons from union and nonunion stores he had managed , and pointed out to her the benefits provided by the Company. While Purple admitted that he had seen a union card sometime during this period he did not "remember the circumstances that it came into his view" or whether it was Wright who had shown it to him. Furthermore, while Purple remembered that Wright had left his office briefly during their discussion, he could not "recall" what had preceded it nor could he remember whether Wright left to get a union card. Purple, when asked whether he had seen the card during his conversation with Wright , insisted he could not "recall " when he saw the card. Purple also testified that he had spoken to Wright in the men's boutique shop later that afternoon and asked her if she had contacted the people she was hopeful would come forward and also discussed other "related" subjects. Bowman 's account of what occurred at the meeting between Purple and Wright was more sketchy than either Wright's or Purple 's but tended to support that of Purple. Bowman testified that Purple had told him Wright had called to request a meeting and that Purple asked him to attend . According to Bowman , Wright indicated her purpose in talking to Purple was to exonerate her department manager , Canary, from any blame in the union activity, that she was concerned that by her activity she might have hurt Canary in some way . Bowman testified further that Wright spent most of her time attempting to justify her activities for the Union . According to Bowman, Purple initiated the conversation regarding the union meeting the previous Sunday. When questioned whether Purple asked who was present at the meeting, Bowman replied , " I don't believe so I think at one time [ Purple] said, 'were there any people from our other stores there?' but there was no direct question about our employees in the store." Bowman testified that Wright stated that if the other employees involved did not disclose their identity she would reveal their names the next day Based on my observation of the witnesses when testifying and a careful consideration of the testimony of the three witnesses present at the meeting in Purple's office, I credit MONTGOMERY WARD & CO. 1025 Wright. Wright impressed me as a more reliable witness while testifying than either Purple or Bowman.' According- ly, I find, as testified by Wright, that Purple, in addition to his admitted interrogation of Wright concerning the union meeting held the previous Sunday, questioned Wright extensively concerning her activities as well as the identity of the other employees who were union adherents and, that upon Wright's refusal to disclose the names of the other employees involved, asked Wright to speak to the employees who supported the Union and persuade them to disclose their identity to him Following Purple's persistent efforts to get Wright to disclose the names of other union supporters or to persuade them to come forward, Wright, on Friday, November 28, asked employee James Hornbrook, a regular part-time employee in her department and an employee whose union support she had solicited, to speak to Purple for Canary's sake. Wright told Hornbrook of what had happened and what Purple wanted. She also told Hornbrook she had talked with other employees without success and asked Hornbrook, who was soon to go into the Army, if he would be willing to speak with Purple; Hornbrook agreed to do so. Thereafter, when Purple called Wright to ask if she had any names for him, Wright informed Purple that Hornbrook was willing to speak with him; Purple asked that Hornbrook be sent to his office.8 When Hornbrook arrived at Purple's office Bowman was again present. Purple asked Hornbrook "if [he ] knew why [he I was there and asked [him] if [he] knew what the Union would do." Hornbrook then explained to Purple his interest in the Union and Purple expressed his view that a union was not good for all phases of business and that with a union the employees would not get as much as they were receiving then. Purple did not ask Hornbrook any other questions about the Union or the employees involved .9 Thereafter, it is undisputed that several of Respondent's supervisors interrogated employees concerning their union adherence and/or the union activities in the store. Thus, on November 28, employee Genevive Wilson, who has worked in Respondent's cafeteria since August 1968, spoke with Joseph Sloan, her supervisor, about a raise. Sloan interrupted Wilson to inquire whether she had signed a union card. Wilson told Sloan she had not yet signed a union card but would probably do so. In December employee Graves, who is presently employed by the Respondent and who was then working under the supervision of Canary, met Katie Hesson, the I In addition, I note that the record reflects that Purple was frequently evasive on cross-examination Purple on direct as well as on cross- examination avoided responding to questions by retreating to a lack of recollection Thus, e g., Purple's apparent lack of recall regarding the reason Wright left for a brief time during the meeting, the circumstances under which he came to see a union card, or who presented it to him, strains belief, Purple's testimony itself evidences great concern by the Company for the union activity which was occurring and the circumstances surrounding the acquisition of a union card by Purple was not likely to be forgotten by him Significantly , Respondent did not question Bowman on this point Also Bowman was not questioned regarding Wright 's testimony that he too had advised Wright to give Purple the employees' names and let Purple handle it personally Moreover , Bowman gave the impression that he did not recall the event as clearly as one would expect he might , in view of the purpose of his attendance , but testified in a manner calculated to support Respondent 's case Finally , I note that while both Purple and Bowman attributed to Wright great concern that the other employees manager of the domestic's department, in the personnel office. Hesson asked Graves if she "knew anything about the Union's activities." When Graves replied that she did but was not interested in it , Hesson stated that she wish she knew who was behind the union activities, that she had heard Mary Wright was behind it. Hesson told Graves, "if I could get a hold of any literature at all about this, I would see it got to the right people." Further interrogation of employees by Respondent's supervisors occurred in December. Employee Ruth McCaully has been working for Respondent since Novem- ber 1969. During the time relevant herein she worked in the cosmetics department under the supervision of Azile O. Gilliland. In December Gilliland questioned McCaully while she was working about " union meetings " and "union activities " When McCaully in response to Gilliland's questions indicated that there had been a union meeting, Gilliland asked her if she knew whether there had been a lot of union cards signed. When McCaully responded that quite a few cards had been signed, Gilliland stated that "they always say they have a lot of cards signed when actually they don't." Thereafter on several occasions before Christmas, in and out of the store, Gilliland asked McCaully whether she had signed a union card, and on one occasion McCaully admitted to Gilliland that she had signed a card. Gilliland's interrogation of McCaully on union matters occurred again on March 3, during a business trip the two made to Cleveland that day. On that date Gilliland asked McCaully whether there were any new union activities or union meetings scheduled. McCaully indicated that there was a union meeting scheduled but she was unsure of the date; Gilliland brought the matter up again on the return trip to Canton. C. The Reduction in Wright's Hours There is no dispute that Wright's hours were reduced beginning with the workweek starting Thursday, November 27, and ending on Wednesday, October 3, and that she was continued on reduced hours until her termination on December 20. On Wednesday, November 26, the day following Canary's call to Wright and Wright's call to Holderman, Canary informed Wright that her hours of work had been cut. Respondent's workweek begins on a Thursday and ends on a Wednesday. Prior to the start of the workweek each department manager makes up a schedule of hours for each employee in his department and involved should come forward and identify themselves to Purple and that failing this she would disclose their names, there is no evidence that Wright ever disclosed the names of her fellow employees to Purple (other than that of Hornbrook who agreed that she might do so) Indeed, the events that followed were inconsistent with the testimony of Purple and Bowman and wholly consistent with Wright 's testimony that despite repeated questioning by Purple she refused to break the confidence of her fellow employees without first receiving their permission to do so In any event , in view of Wright's great concern that she may have caused Canary trouble by her union activities (her purpose in speaking to Purple admittedly was to exonerate Canary) and her expressed belief to Purple that her hours had been reduced because of her union support , it is unlikely that Wright would have offered to disclose the names of other employees involved with the possibility of causing them trouble with the Company. s This is based on the credited testimony of Wright and Hornbrook. 9 This is based on the credited testimony of Hornbrook which was not disputed by Purple or Bowman 1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD submits it to Holderman, the operations manager; Holder- man generally approves the submitted schedule without substantial change, but has the authority and on occasion does make such changes. Starting in November 10 Wright had worked an average of 35 hours a week through the week ending November 26 (during which week she worked 39.8 hours); her hours for the most part were spread throughout the week including Sunday for which she received premium pay. Beginning the week starting November 27, Wright worked an average only of 22 hours a week, which were for the most part limited to 10 hours on Friday and 10 hours on Saturday, with Sunday work only for the week ending December 10. Admittedly the change in Wright's hours resulted from Holderman's direction to Canary that Wright's hours be reduced.11 D. The Termination of Wright's Employment Employee Wright continued to work her reduced schedule of hours through December 20, and was thereafter terminated. Wright had started her employment with the Company as a regular part-time employee in August 1968, at the time the store was opened. She was continued in her employment except for brief periods of illness until September 1969. At the beginning of the summer prior thereto Wright worked as a full-time employee and had served briefly as the manager of the lingerie and foundations department.12 During the latter part of the summer Wright was absent from work because of illness and was released by her doctor for part-time work on September 4, 1969.13 At that time Cleta Dayton, the personnel manager, initially told Wright they had no hours of work available and Wright asked if she could take her vacation that week; however, Dayton then checked the work schedule and was able to provide Wright with 18 hours of work. Wright could work only part of this since she was then physically unable to work the 10-hour day for which she had been scheduled. Thereafter, Wright was given her 4-day vacation and was absent 6 days longer at her request because of family illness. At the end of September, when Wright called in for a work schedule she 10 Wright, who for a brief period had not been actively employed (discussed infra), returned to her employment with Respondent on Monday, October 27, and so was employed only half the workweek ending October 29 11 On cross-examination Canary testified in this regard Q. You said that the operating manager, who I take it is Mr. Holderman, told you to cut down the hours of Mary Wright, is that not true'/ A Yes, sir 12 Wright after a few weeks voluntarily gave up the position of department manager , but continued to work as a full-time employee in that department 13 According to Wright her doctor had restricted her to part-time work for at least a month 14 According to the Company, it could not schedule Wright because it had no hours available to accommodate her limited availability at that time 15 The status of "termination" as used by the Company covers cessations from active employment for a number of reasons as well as discharge, including illness and layoff Under the termination code maintained by the Company , absence due to illness is designated code 26, and layoff, code Ii As explained by Personnal Manager Dayton, an employee in a "termination" status as contrasted with an employee actively employed does not receive the benefit of reduced credit charges at the store According to Dayton any employee who is not scheduled to work for was advised by the personnel department that she was not scheduled to work and that she had been "terminated." 14 When Wright inquired if this meant she was "fired " she was told it did not.15 Wright was "rehired" by Respondent and returned to work on October 27. About a week before returning to work Wright had spoken with Linda Kelly, who assisted Mrs. Dayton ; when asked what hours she would be available Wright indicated she could work full time, expressed a preference for Friday and Saturday nights, and also made known her willingness to work on Sunday ; 16 this was repeated to Dayton when she called Wright to confirm her willingness to work the number of weekend hours Wright had indicated .17 Wright had understood she was returning to work as a regular full -time employee but according to Dayton there was no regular full-time positions open and she was hired as a part - time floater. Wright 's undisputed testimony is that nothing was said limiting her rehire to "Christmas work " and the Company does not contend that she was rehired other than as a regular part-time employee and I so find . 18 As noted, Wright returned to work on October 27. Initially, Wright worked as a floater, spending a large part of her time in the shoe department and the men 's furnishings department. While working as a floater several department managers (including Canary) asked her to work in their departments full time . In the latter part of November , Wright was assigned exclusively to the men 's furnishings department under Canary . On or about November 24, when Wright was working in the men 's boutique shop , which was set up for the Christmas season , Sam Brown , the Swank Jewelry Company's representative visited the shop to stock additional merchandise . About 95 percent of the stock in the boutique was Swank merchandise and Swank in part subsidized the store for the wage cost of servicing the boutique ; accordingly Brown was interested in the employees who would be working in the shop. Brown commented on how well qualified Wright was and how well she knew the merchandise , Canary expressed his agreement with this evaluation and told Brown that Wright would be working there 40 hours a week . 19 Thereafter, as noted, the following workweek and has no immediate prospect thereafter is terminated under code 11 Dayton further testified that the employee in layoff under code I I is given preference in employment if work becomes available and when returned to work a code I1 employee is regarded as "rehired" and her continuous service date or seniority date is from the time of "rehire " 16 It was Wright's understanding that a full-time employee was required to work 2 nights a week. 17 As to Wright's availability for work Dayton admitted on cross- examination that Wright stated she was available for work Monday through Friday until 10 p in , Friday and Saturday, 10 a in to 10 p in., and Sunday from 12 noon until 5 p m., since those were the hours the store was open Wright in effect indicated she was available for work any time during the store 's hours 1s This is significant since some part -time employees were hired just for the Christmas season whereas regular part-time employees are hired to work throughout the year 19 Wright testified as to the statement re 40 hours . Canary, while he admitted Brown's complimentary remarks concerning Wright and his concurrence in them, denied that he had stated Wright would be working 40 hours in the boutique during the Christmas season. Wright impressed me generally as a more reliable witness than Canary and her testimony is credited as to this and Canary's is not in addition, in view of Swank representative Brown 's substantial interest in the employees who worked in the boutique and his expression of high regard for Wright with which MONTGOMERY WARD & CO. 1027 Wright's hours starting on November 27 were reduced to Friday and Saturday each week with one Sunday afternoon employment on December 10. On Saturday, December 20, Wright, since she had been working only on Fridays and Saturdays asked that she not be scheduled for the following week. Thereafter, Wright made several calls to Respondent to learn her work schedule and finally in January she spoke with Cleta Dayton. When Dayton told her she was not on the work schedule Wright asked Dayton when she could be put back on. Dayton told Wright she wasn't needed because they had cut back in personnel. Dayton did not encourage Wright to call back. When Wright inquired if Dayton thought she would be put back on the schedule, because, according to Wright, there were other places in the store where she felt she would be needed, Dayton said, "No, because if you don't work x number of days and hours in x number of days, you will be automatically terminated." Wright was in fact terminated as of her last day of employment, December 20. Wright has not been recalled to work since that date. According to Dayton, she had received no reports concerning the layoff of Wright but when she examined the work schedules for department 35, which was one of the two departments under Canary (one being men's furnishings and the other boy's furnishings) Wright was not scheduled for work and therefore was terminated.20 According to Dayton, while she received requests from department managers for other employees she received none for Wright and she had not assigned Wright to other departments "due to personality conflicts and by department managers." As to the Company's failure to recall Wright, Dayton admitted it was a possibility that other employees may have been called back since December 20, but testified that no employees had been recalled in departments 33 and 35. E. Position of the Parties It is the Respondent's position that any interrogation of employees by Respondent concerning union activities or adherence was isolated and not coercive and that it did not violate Section 8(a)(1). The Company further contends that its admitted reduction of Wright's hours, her subsequent layoff, and its failure to recall her were not violative of Section 8(a)(3) and (1) of the Act. The Respondent urges by way of affirmative defense that Wright's hours were reduced to enable it to provide work for the part-time employees hired only for Christmas so that they could attain more experience for the 2 weeks before Christmas. Furthermore, it is the Company's position that Wright was selected for, and continued on, layoff following the Christmas season because of her low seniority and limited availability. It is the position of the General Counsel that Respon- dent's interrogation of its employees was coercive and violative of Section 8(a)(1). The General Counsel further contends that Wright's reduction in hours starting on November 27 and her subsequent selection for layoff, as well as the Respondent's failure to recall her for work thereafter, was because of her known union activities. F. Analysis, Additional Findings, and Conclusions 1. The alleged 8(a)(1) violations Starting on November 26 the undisputed and credible evidence discloses that Respondent through its Store Manager Purple and its department managers not only interrogated a number of employees directly concerning their union activities and adherence but also attempted to have them disclose information relating to the Union's efforts to organize the store, including in some instances, the names of other employees who supported the Union. In the course of so doing, the Respondent, through Purple and Canary, made it clear that the Company was opposed to union representation for its employees. Contrary to the contention of the Respondent, a review of the facts, as found, concerning Respondent's activities, particularly in the context in which they occurred, cannot be regarded as merely casual and isolated but were, I find, coercive and violated Section 8(a)(1) of the Act. Thus, when Wright met with Purple in his office on November 26, she made it clear that her only purpose in speaking to Purple was to inform him that Canary had no prior knowledge of, nor was in any way responsible for, the union activities which had occurred. Purple's questioning thereafter concerning the Union's and Wright's activities, his repeated efforts then and later to have Wright disclose the names of other employees and failing this to enlist her aid in having such employees reveal themselves, clearly exceeded any permissible bounds of legitimate employer inquiry into the employees' efforts to gain union represent- ation and was violative of Section 8(a)(1). Indeed, even were '[ to accept Purple's version of the exchange that occurred between him and Wright in his office on the morning of November 26, his admitted encouragement of Wright's alleged offer to urge the other employees to identify themselves through his later inquiries of Wright in pursuit of this purpose, I find, would constitute an unlawful interference by management in the Section 7 rights of its employees. The fact merely that an employee, fearful of being singled out as the only union activist, volunteers to assist the Company by urging the other employees who supported the Union to disclose their identity does not privilege the employer to become a partner in this, an enterprise which if undertaken by the Employer alone would be clearly violative of the Act, the participation of an employee does not make such an enterprise any the less coercive of the employees' exercise of their Section 7 rights. Particularly in this case where Wright made known to Hornbrook that Purple was pressuring her to have the employees come forward to disclose their union sympa- thies. I find that Hornbrook's resultant interview with Purple for this purpose, as well as Purple's further inquiries during the interview concerning the reason for Hornbrook's union adherence, constituted unlawful interrogation in violation of Section 8(a)(1) of the Act. Furthermore, in the circumstances present herein, including inter alia the expressed opposition of Store Manager Purple to the Union, his unlawful activities to Canary readily agreed, I am persuaded that while Canary ordinarily might would and did give such assurances to Brown in Wright's presence not assure any part-time employee a particular number of hours, in the 20 Canary did not testify as to why Wright was not scheduled And circumstances, particularly with the Christmas season about to begin, he Holderman was not called as a witness 1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD uncover the facts relating to the employees' union sympathies, and the reduction of Wright's working hours on November 26 (which for reasons discussed more fully infra, I conclude was in retaliation for her union activities), I find that the incidents of interrogation set forth supra, by Canary, Gilliland, Hesson, and Sloan, almost all of which occurred in the month prior to Christmas was unlawful. Accordingly, I conclude that Canary's interrogation of Graves on November 26,21 Sloan's interrogation of Wilson when she requested a raise on November 28, Hesson's interrogation of Graves in December, accompanied by her suggestion of surveillance, and Gilliland's repeated interro- gation of McCaully in December and renewed in March 1970 were coercive and constituted violations of Section 8(a)(l) of the Act. I further find, as alleged in paragraph 7(b) of the complaint that Canary's remarks to Graves, i.e., that he hoped the girls had not signed cards and that it had been left to him to stop the union activity in his department, occurring as it did at the same time Wright's hours were reduced, carried with it a threat of reprisal if the employees in his department engaged in union activity and was in violation of Section 8(a)(1) of the Act. 2. The alleged reduction of Wright' s hours in violation of Section 8(a)(1) and (3) With respect to the reduction in Wright 's hours, I find, contrary to the Respondent 's contentions , that this action of the Company was discriminatorily motivated and resulted from her known union activities Wright , who was the leading proponent in the Union 's organizing campaign, was known to be actively soliciting for the Union by Respondent who opposed union representation for its employees . More particularly , it is clear that Holderman, the operations manager who supervised the department managers ' scheduling of hours, was made cognizant that Wright was actively involved in the union campaign at least as early as November 25, by Wright's call to him on that 21 My finding of unlawful interrogation by Canary is based on his questioning Graves regarding her knowledge of the union activities in the store , particularly since , in addition to the circumstances noted supra, it occurred in the context of Canary's further remark that he hoped the girls had not signed cards and that it had been left to him to stop union activities in his department I do not find that Canary's telephone call to Wright constituted unlawful interrogation The account of neither Wright nor Canary disclosed any attempt by Canary to inquire into Wright's union activities but was a warning reflecting that it was reported to management (accurately or not) that Wright was carrying on union activities during working hours (a violation of the Company' s no-solicitation rule) and that she was to cease such activities 22 Canary testified that other employees' hours were reduced at the same time as Wright 's in order to provide training for "available help" for the 2-week peak period before Christmas According to Canary he "had people working maybe one day a week " Respondent adduced no testimony as to the employees involved , whether the other employees and Wright were similarly situated , the amount of the hours reduced for any one employee , whether the other employees ( like Wright ) were continued on reduced hours through the peak 2-week period , and whether the employees working "maybe one day a week" were regular part-time employees who had worked any substantial number of hours prior thereto The Respondent who had the employees' records available to it and could have established these facts failed to do so And I conclude that any change in the schedule which may have resulted in reduced hours for some employees did not affect employees like Wright , did not result in the drastic 50-percent reduction in hours as in Wright's case and did not continue into the 2-week peak period as it did in Wright's case date. And it was the very next day that Canary told Wright her hours for the following week were reduced, an action taken at the direction of Holderman. In these circum- stances, and after consideration of the reasons advanced by Respondent for this action , which I find , for the reasons set forth infra, do not stand up under examination , I conclude that the Company's reduction of Wright's hours on November 26 was part of the Respondent's efforts to defeat the Union's organizational drive to achieve representation for the employees of the store. Respondent, as noted, contends that the reduction in Wright's work schedule was to provide more hours for the Christmas help so that they could gain experience for the 2 weeks before Christmas, which according to Canary is the peak period for business in his departments.22 According to Canary too, this was the reason given by Holderman at the time he directed Canary to reduce Wright's hours on the work schedule which Canary had submitted for the next workweek.23 This alleged reason for the Company's action , as I see it, carries its own death wound. For even assuming arguendo the validity of such reason during the last week in November this would fail to explain why Wright, an experienced employee, was continued on substantially reduced hours during the 2 peak weeks preceding Christmas. Certainly during the peak period there would be no reason to use inexperienced Christmas help in place of experienced employees. Moreover, I am otherwise persuad- ed that Wright's reduction in hours was not for the reason advanced by the Company. In the first place Wright was performing commendable work in the boutique shop, a special merchandising technique which was used during the Christmas season when sales in this kind of merchandise ordinarily is peculiarly high. Furthermore this was an enterprise in which employee wages was partially subsi- dized by Swank whose representative had expressed an interest in Wright's servicing that operation and had been 21 Respondent in its brief argues that because the department had not met the sales-wages ratio for October this had caused a general reduction in hours alloted to Canary' s departments and that it was the needed overall reduction in hours together with the asserted need to provide additional experience for the Christmas help that resulted in Wright's reduced hours As to the general reduction of hours in Canary's departments, I note that in the period during which Wright's hours were reduced, i e , between November 26 and Christmas , additional help was employed in these departments and that the hours of other regular part-time employees was increased for this period Thus employee Fueling admittedly was rehired following the alleged need to reduce overall department hours and employee Hornbrook and Graves worked an increased number of hours during this period Furthermore in this regard , it is also noted that the sales -wage reports are received 2 weeks following the month end and there is no explanation why Holderman who purportedly reviews the sales-wage ratio weekly or sometimes daily for the possible need to reduce hours would not have taken such action sooner but would have waited until the start of the Christmas rush following Thanksgiving, a time which coincidentally followed immediately after the start of Wright 's known union activities In any event , even were I to assume that there was some overall reduction in hours in Canary 's departments at the time the action was taken , Respondent itself does not contend that this alone would have resulted in a reduction in Wright's hours had it not been for the alleged need to train Christmas help-the reason, according to Canary, that Holderman had given him at the time the action was taken Accordingly, as I see it . Respondent 's position on this aspect of the case turns on whether Respondent's motive in reducing Wright's hours was to provide additional training for the Christmas help MONTGOMERY WARD & CO. 1029 told by Canary that Wright would be used full time. More importantly is the fact that on the morning of November 25, the entire discussion between Canary and Wright, both before and after Canary had informed Wright of her reduced hours, had centered on her union activities Canary neither that day, nor so far as it appears at anytime thereafter, offered Wright this or any other explanation for the sudden and drastic cut in her hours during the Christmas season. Canary's failure to do so is particularly significant in the context of his remark to Wright that "they" made him cut her hours and he would not "blame" her if she quit as well as Wright's response that "they" were trying to make her quit. For in these circumstances, Canary's failure to relate this alleged reason to Wright who admittedly had shown so much concern for Canary during their conversation is to say the least confounding; particularly is this so, since Canary testified at the hearing that he believed the reason assertedly given him by Holderman to be a valid one. I conclude that Canary's failure to do so reflected that at that time Canary in fact had not been told this by Holderman or if it had been discussed at all between Canary and Holderman was understood by Canary to be a subterfuge for the Company's real reason-namely, Wright's union activities. In this regard I also note that Canary, who had worked for Respondent for 9 years, was constrained to admit on cross- examination that such a policy had never before been followed by the Company. Finally, there is the evidence that during the period in which Wright had been kept on reduced hours other regular part-time employees in Canary's departments such as Hornbrook and Graves worked more rather than less hours than they had worked before the Christmas rush. Accordingly, I conclude, in light of Wright's active role in the Union's efforts, Respondent's expressed hostility to union representation, the timing of the decision to reduce Wright's hours, as well as its continuation through the last day of her employment on December 20, that the reason therefore was not to train Christmas help by the Company but was because of Wright's union activities and was therefore conduct violative of Section 8(a)(1) and (3) of the Act. 3. Wright's alleged termination in violation of Section 8(a)(1) and (3) As noted it is alleged that Wright's termination on December 20 and the Company's failure to recall her for work thereafter were because of her union activities. Respondent on the other hand contends that Wright's termination was under code I I (or layoff) and was part of a general reduction in personnel following the Christmas season; further, that Respondent's selection of Wright for layoff and its failure to recall her were based on two factors-her limited availability and low seniority. The 2+ The record is unclear as to when and how many part-time employees were laid off before Christmas Dayton's testimony concerning the stability reports indicate that the report for November reflected employee changes through November 19, and that the report marked December indicated the totals as of the last day of that month Since this covered a period encompassing the Christmas season as well as the week following Christmas, the report does not reflect the number terminated during the Christmas season or the number laid off dust before or after Christmas question on this aspect of the case is whether the reasons advanced by the Respondent have support on the record and whether Wright would have been selected for and continued on layoff status had it not been for her union activities. As detailed above , the evidence establishes and I have found that Wright who has been employed by the Company since the store opened was a known activist in the Union's organizing campaign , that the Company actively opposed the Union 's attempt to organize its employees and had engaged in unlawful conduct , including the reduction of Wright's hours during the Christmas season because of her union activities . In view of this evidence strongly supporting the inference that Wright's later selection for termination was because of her union activities , it becomes necessary to examine closely the validity of Company' s asserted reasons for its action. Moreover , in considering the Company 's alleged reasons for Wright's selection for layoff it is necessary to determine what, if any, standards were followed by the Company in effectuating the reduction in force , and further whether such standards were followed in Wright 's case . It is my conclusion that the Company failed to establish that under its reduction in force procedures , Wright 's seniority (i.e., her continuous service date) was a determinative factor or that there was a factual basis to support the Company's other asserted reason for layoff-namely , that Wright was an employee of limited availability. It is undisputed that following the Christmas rush, the Company eitherjust before or after Christmas terminated a number of employees . 24 It is also undisputed that employees hired as Christmas help merely were ordinarily the first to be terminated and it was only then that regular part-time help was considered for layoff . A close examina- tion of the record in this case fails to disclose the number of regular part - time employees , if any, who like Wright, were laid oft . For while there were 38 part-time sales employees "terminated" in December who were listed as "regular part- time employees" on the stability reports submitted in evidence , this does not establish , because of the broad applicability of the term "termination ," that all termina- tions were involuntary and for economic reasons; more significantly, there is no showing how many of the number of employees terminated had been hired for dust the Christmas season and how many, like Wright , were regular part-time employees , for according to Dayton the Christ- mas part-time help was included in the number listed for "regular part time employees ." What is clear from the record is that 95 regular part-time employees were retained following the Christmas season and that in these cases at least the Company chose to actively employ this number and place them on reduced hours and spread the work rather than put any of them in layoff. The evidence pertaining to the underlying factors relating One thing that is clear is that the 95 part-time employees listed could not include the total number of employees who had worked during the 6-week period from November 19 to December 31. since the number of terminations reflected on the November 19 report would not account for this difference in the number employed through December. Furthermore, all the termination dates provided in this record reflect terminations which occurred either just before or after Christmas 1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the layoff of the employees, including Wright, as well as the surrounding circumstances, was adduced through the testimony of Cleta Dayton, the personnel manager. Unfortunately her testimony tended to obfuscate rather than make clear the policies allegedly followed by the Company in selecting which of the regular part-time employees were to be retained and which of these employees, if any, were to be laid off. Thus Dayton, who allegedly received no report to do so but terminated Wright because she was not scheduled for work, at first testified that Wright did not appear on the work schedule "as she was the employee in the department that had the least amount of seniority." Dayton further testified that the department managers do not "normally" check with her with regard to the basis for cutting hours or laying off employees, but that if the manager has someone in his department who hasn't worked for him "a regular period of time and was part of his performing organization, automatically he will leave that individual off his schedule." All of the foregoing suggests that seniority (which according to Dayton starts with the most recent date of rehire) is a governing factor in layoff, and further that seniority is based on the department in which the employee has last worked. However, Dayton later testified and Respondent now asserts in its brief that "seniority is not the only factor, but another factor is performance and also the need and flexibility of both the departments and the store as a whole, and as of the individual." Respondent at no time established the weight which it accords these various factors in reducing the number of its active employees. In any event, it is clear that Respondent does not rely strictly on the objective criteria of seniority as the determinative basis for the retention of employees during a layoff,25 but itself urges that other factors necessarily based on evaluations by the Company are considered in its reduction-in-force procedures.26 What appears from the evidence available in this record is that the Company generally retains those part-time employees who are considered a basic part of its work force throughout the year. This is evidenced by Dayton's testimony that the store regards its regular part-time employees as part of the "basic organization" of the store and that these employees are kept on the schedule; 27 it is also evidenced by the testimony of other witnesses that the regulars were retained after the Christmas layoff.28 Furthermore the fact that the Company chose to retain 95 regular part-time employees on a spread the work basis evidences that the Company seeks to retain as active 25 Employee Fueling, who according to Dayton was hired initially as a part-time employee on October 28, the day following Wright's "rehire" and was terminated for 3 weeks in November for illness resulting in a seniority date in late November, has been employed by the Company after January 1, 1970 Graves' testimony while not clear concerning the dates of his two absences clearly testified that he was employed during February 1970 Dayton while she testified concerning Fueling did not contradict Graves' testimony that Fueling was actively employed, sometime following January 1, 1970 16 Respondent in its brief, while it stated that seniority was a factor, proceeded thereafter to set forth clearly, as noted, that other factors are considered and did not urge that seniority was the primary consideration, indeed it carefully eschewed any such contention in its statement that "Other part time employees at the store with more seniority, if more seniority be a criterion, were laid off after Christmas [Emphasis supplied p" It is also noteworthy that Respondent in support of this point included employees the regular part-time employees who comprise its basic work force throughout the year. In view of the foregoing, I am persuaded that at least where the regular part-time employee is considered part of the store's "basic organization," the employee's seniority or continuous service date as that term is applied under Ward's peculiar system of "termination" is not a significant factor, and that following the Christmas rush the Company retains such employees. Accordingly, since I find that prior to her union activities Wright was considered a part of the store's basic organization, I conclude that Respondent's layoff of Wright, and its failure to recall her thereafter, was not the result of her low seniority. That Wright was considered a part of the basic work force of the Respondent's store is amply supported by the evidence in this record. Wright had started her employment at Respondent's Mellet Mall store at the time the store was opened and for the period of 18 months preceding her layoff she had worked as a regular part-time or full-time employee including serving briefly as a department manager. More importantly Wright testified credibly that during her 18 months of employment with the store (which included the preceding Christmas), she had never before been laid off because of lack of work. Respondent introduced no contrary evidence. And so far as appears in this record the only time Wright had been refused work by the store was when she sought to return in October following her illness and while she was still restricted in her hours of work by her doctor; according to the store in these circumstances it had no hours at that time to suit her availability. From the foregoing I conclude that Wright was part of the store's "basic organization" and had been considered as such up to the period commencing with her union activity. I also find that she ceased to be considered as such shortly thereafter; on November 25, Holderman had stated to her that she was "good for the duration" evidencing I find that the decision had then been made that Wright would not be retained beyond the Christmas season, for reasons unrelated to her seniority or other factor ordinarily considered by the Company but because of her union activities. Respondent at the hearing and in its brief sought to establish, however, that there were other regular part-time employees who were laid off following the Christmas season and, while not urging that seniority was a governing factor in these cases, noted that "if more seniority be a criterion," among the regular part-time employees laid off were some who had more seniority than Wright. In support thereof the Respondent relied on the testimony adduced many employees who did not work in the same department as Wright-evidencing that seniority to the extent it was a factor was not departmental 27 Thus, when Dayton was cross-examined as to the operation of the system of termination, she testified as follows Q Isn't it a fact that sometimes you will have a regular part-time employee who won't work for a whole week , yet their names will appear on the payroll? A A regular fulltime5 Q Part time A Well I don't know of any regular part time, sir, which is part of the basic organization , where they wouldn't appear on the schedule zs Thus, Graves testified that to her knowledge there was no layoff of regular part-time employees after Christmas, but that their hours were reduced To similar effect was the testimony of Hombrook that when he visited the store in January. all the regulars were there except Wright MONTGOMERY WARD & CO. 1031 through Dayton. According to Dayton she had "briefly scanned" the employment records of the Company and testified to six regular part-time employees who were laid off after the Christmas rush. Among these six, four purportedly had higher seniority dates than Wright.29 However, as to these employees, I note in the first place that the evidence adduced does not reflect that any of them had been with the Company for more than 6 months, or that they had been employed during a general reduction in force and been retained, demonstrating thereby that like Wright they were considered a part of the basic work force of the store. Furthermore, a close examination of Dayton's testimony reveals that it was so unreliable as to deprive it of any substantial probative value in establishing that regular part-time employees were in fact involuntarily terminated for economic reasons after the Christmas rush or to evidence that seniority was a significant factor in their layoff. Thus Hornbrook's seniority date was given as June 16, yet the undisputed testimony of both Wright and Hornbrook himself is that he had long breaks in employment during the summer of 1969 ranging up to 5 or 6 weeks; this as I understand it under Ward's procedures and the reason therefor would have resulted in a new seniority date when he returned to his employment.30 Moreover, as to Hornbrook, it is apparent that in retaining regular part-time employees after the Christmas layoff the Company was concerned with retaining those employees who would be available on a regular basis for the coming year, so that Respondent's knowledge that Hornbrook was leaving for the Army and would not be available after January would naturally have entered into the decision regarding his layoff. Furthermore, the employment of George on December I I and his termination on December 23 strongly suggests that in fact he was employed as Christmas part-time help rather than as a regular part-time employee. Finally, there is Dayton's testimony concerning Margaret Cassidy who was hired on November 4 as a part- time floater for the various men's departments and was terminated December 27. While the six named employees, which included Cassidy, purportedly were employees like Wright who were involuntarily terminated for economic reasons, Dayton's own testimony concerning Cassidy indicated this was not the fact. Thus Dayton testified that Cassidy when hired had wanted to continue her employ- ment after the first of the year, and that she, Dayton "had this thought in mind"; however, Dayton's further testimony that Cassidy could not continue her employment because of personal problems evidences that neither seniority nor economic considerations were factors in her termination. In view of the foregoing and the failure of the Company to present the employment records available to it to demon- strate that regular part-time employees were indeed laid off after Christmas and that the seniority dates of such employees were later than those of the employees retained, 29 Thus according to Dayton the following employees were hired as regular part- time employees and not as Christmas help Linda Lippka hired September 2 as a part -time floater who worked mostly in stationary (department 53) and was terminated December 28, Debra Bee hired September 17 as a part -time floater who worked in department 33 and was terminated December 26, Margaret Cassidy hired November 4 as a part- time floater for various men's departments (departments 33, 34, 35) and was terminated December 27, Gary Huntley hired July I1 as a part-time I find that Respondent failed to establish either that regular part-time employees were involuntarily laid off or that seniority, as defined by the Company, was a factor in the layoff. In sum, I conclude that Respondent failed to establish that seniority, as defined by the Company, was a determinative factor for regular part-time employees in the reduction-in-force procedures followed by the Company. The other factor purportedly relied on by the Respondent in selecting Wright for layoff was her limited availability for work; this asserted reason for the layoff I find lacked any basis in fact. Thus the Company in its brief urges that Wright could and did work only on Friday and Saturday nights. There is no question that during the period prior to her layoff Wright did work only Friday and Saturday nights; however, that Wright could not or would not work other nights if the needs of the store required it is not established in this record. Apart from a brief period of about a month following her illness, when Wright's hours of work were restricted by her doctor, there is no evidence that Wright had ever refused to work any hours requested by the Company at any time during her employment- including the period preceding her termination on December 20. The fact is that prior to her return to work in October, Wright admittedly had informed personnel that she was available for and sought full-time work. In fact Wright had worked an average of 35 hours a week following her return, and in the week just preceding the Company's reduction in her hours had worked 39-1/2 hours including Friday and Saturday nights and Sunday afternoon; there is no evidence that regular part-time employees were needed to work any more hours than this during the weeks preceding Thanks- giving During Wright's discussion with Linda Kelly, Wright, who understood at the time that she would be working full time, had indicated her preference for Friday and Saturday nights, since it was her understanding that as a full-time employee she would be working 2 nights a week. As noted, there is no evidence that Wright was ever asked to work any other evening hours or if asked she would not have done so either during her employment prior to December 20 or thereafter while she was on layoff status. It was not uncommon for employees to express a preference for particular hours when work is scheduled but by so doing it cannot be concluded that if asked the employee would not work other hours. Indeed Dayton conceded on cross- examination that Wright told her, that she, Wright, was available Monday through Friday until 10 p.m., Friday and Saturday 10 a.m. until 10 p.m., and Sundays from 12 noon until 5 p.m., which encompassed the hours the store was generally open during this period. In any event Wright's willingness to work from 10 a.m. to 10 p.m. on both Friday and Saturday as well as the 5 hours the store was open on Sunday afternoon, far from being viewed as evidencing a restricted availability was so unusual that Dayton herself called Wright to confirm the fact that Wright was willing to floater who worked mostly in pants and the men's suit and accessories departments and was terminated on December 21; James Hornbrook hired June 16 for all men 's departments and in sporting goods and was terminated December 24, George hired December 11 for department 28 and was terminated December 23 According to Dayton the termination date is the last date the employee worked 10 No explanation as to this was offered by Respondent 1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD do so and that her husband would not object to Wright's working all the weekend hours she had indicated. I find that at the time it occurred Dayton, far from viewing Wright's expressed willingness to work these hours as in fact restricting her availability, considered this to the store's advantage and not as an adverse factor in Wright's employment which Respondent now claims it to be. I conclude therefore that Respondent's contention that Wright was an employee of limited availability based on her alleged inflexibility in hours lacked any basis in this record, and that Respondent merely seized on the fact that Wright had worked only Friday and Saturday nights during the last period of her employment in an effort to mask its real reason for selecting Wright for layoff on December 20. In support of its limited availability argument, Respon- dent also argues that Wright had been assigned to the men's boutique exclusively during the last few weeks of her employment and that the boutique was dismantled after Christmas obviating any need for employees to service it. Respondent argues further that in considering Wright's availability, the factor of where she could be used as well as the hours she was available was such that it limited her availability further. As to this Respondent notes Dayton's testimony that while department managers had requested other employees, Dayton herself had received no requests for Wright; Dayton further testified in this regard that Wright had not been used in other departments "due to personality conflicts and by department managers." After a careful consideration of Respondent's arguments and the record evidence in this case relating thereto, I am persuaded that Respondent's arguments do not withstand scrutiny. In the first place the fact that the men's boutique was dismantled following the Christmas season, I find presented no problem as to where the store could use Wright and was not a decisive factor in the failure to retain or recall Wright, as Respondent suggests. Wright had worked in the boutique for only a few weeks prior to her termination on December 20. Moreover, Wright had worked in a number of Respondent's departments during the course of her 18 months employment with the Company including serving briefly as a department manager; as an experienced and skilled sales employee, knowledgeable in the procedures of the Company, I find that Wright was able to handle assignments in the other departments of the Company Respondent showed no hesitation in assigning Wright to different departments following her return to work on October 29 and so far as this record discloses she handled her assignments well. Also, Wright testified credibly that prior to her assignment to Canary's depart- ment, and while she was working as a floater, she had been solicited by a number of department managers to work full time in their departments.31 In any event, Respondent has not contended that Wright was other than an able saleslady; nor did it contend or adduce any evidence that such skills were not ordinarily transferrable from one department to another. Moreover in view of the foregoing and the lack of any substantial evidence to support Dayton's testimony, I am not persuaded that because of "personality conflicts" Wright's availability was reduced so she could not be used in other departments.32 The only evidence relevant as to this was Wright's admitted refusal to return to work for Multigly, one of Wright's successors as manager of the lingerie and foundations department. The fact is that Multigly had left the employ of the store at Christmas and this could not have presented any limitation on Wright's use in this department. The only other evidence was Dayton's testimony that Virgil had requested that Wright not be assigned to her department after the Christmas season 33 That this was not considered to involve a serious matter concerning Wright's overall performance as an employee is evidenced by the Company's rehire of Wright thereafter and, more importantly, that Virgil, herself, requested of Wright that she work in Virgil's department through the Christmas season. There is no evidence that Wright's services were other than highly regarded by any of the other department managers; indeed the only evidence in the record is to the contrary. Accordingly, I conclude that it was not because of any restrictions on Wright's use by the store that resulted in her selection for layoff, but that this contention like the Respondent's argument concerning the alleged limitation on the hours she was available was advanced by the Company as a pretext for the Company's real reason for its layoff and failure to recall Wright. Finally the circumstances surrounding the discharge of Wright lend further support to a finding that Wright's layoff was discriminatorily motivated. For according to Dayton's testimony she terminated Wright when Wright's name was not included on the work schedule following the reduction in force after the Christmas rush. This suggests that it was the decision of Wright's department manager, or Holderman, or some higher management official not to schedule Wright which resulted in her layoff. Considering the fact that Canary had been directed by Holderman to reduce Wright's hours during the height of the Christmas rush, a decision which I find was because of her union activities, the failure of Wright to be retained by her department manager, or to be requested by any other department manager, or to be assigned work by Dayton, would naturally follow during a layoff without any attention being given to factors which the Company might otherwise have considered. Furthermore, as noted, I find that Holderman's statement to Wright when he spoke to her the day before her hours were reduced and told her she said "good for the duration" evidences that the decision had been made at that time not to continue Wright after Christmas, a decision which I find, like that to reduce her hours, was because of her union activities. Accordingly, I conclude that the termination of Wright as of December 20 and the failure to recall her from layoff status was not for the reasons advanced by the Company 31 Wright's further testimony that these same department managers in fact had requested her assignment I find was based on what had been told to her by the managers involved Dayton's testimony that no such requests managers named by Wright were not called to testify to the contrary 32 While this was urged at the hearing, it was not pursued by the Respondent in its brief had been received by her does not refute the testimony of Wright, the 33 No competent evidence was presented for the reason therefor MONTGOMERY WARD & CO. 1033 but was because of her union activities and therefore was violative of Section 8(a)(1) and (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section 1, above, have a close, intimate, and substantial relationship to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Company engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, it will be recommended that the Company cease and desist therefrom, that it offer to reinstate Mary Wright as an active regular part-time employee and to pay her backpay for the reduction in her hours of work starting November 26 through December 20 and any further backpay she may have lost because of the unlawful discrimination practiced against her thereafter, such backpay to be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 N LRB 289, and Isis Plumbing & Heating Co, 138 NLRB 716, and that Respondent post appropriate notices. On the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Company has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, which unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this case, it is recommended that Montgomery Ward & Co., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning their union activities, sympathies, and membership and the union activities, sympathies, and membership of other employees. (b) Threatening employees with reprisals for engaging in union activities. (c) Reducing the hours of work, laying off, terminating, or otherwise discriminating against its employees in regard to hire or tenure of employment or any term or condition of employment to discourage their union adherence or activities. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self- organization, to form labor organizations, to join or assist Retail Clerks International Association, Local No. 698, Retail Clerks International Association, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and 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, as modified by the Labor- Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which will effectuate the purposes of the Act: (a) Offer to Mary Wright immediate and full reinstate- ment to her former position as an active regular part-time employee, without prejudice to any seniority or other rights and privileges previously enjoyed, and make her whole for any loss of pay suffered as a result of that discrimination against her in the manner set forth above under "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Post at its Mellet Mall store in Canton, Ohio, copies of the ati.ached notice marked "Appendix."34 Copies of said notice on forms provided by the Regional Director for Region 8, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 8, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.35 " In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations and Recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations , be adopted by the Board and become its findings , conclusions, and order, and all exceptions thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading " Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Boardl" 15 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The Act gives all employees these rights: To engage in self-organization To form, join , or help unions To bargain collectively through a representa- tive of their own choosing 1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To act together for collective bargaining or from becoming or remaining members of Retail Clerks other mutual aid or protection International Association , Local No . 698, Retail Clerks To refrain from any and all of these things. International Association , AFL-CIO. WE WILL NOT do anything that interferes with these rights. More specifically, WE WILL NOT threaten employees with reprisals for engaging in umon activities. WE WILL NOT reduce the hours of work, lay off, terminate, or otherwise discriminate against any employee in regard to hire or tenure of employment or any term or condition of employment to discourage the employee from joining, assisting, or otherwise support- ing the Union. WE WILL OFFER Mary Wright employment as an active regular part-time employee and pay her for any wages she may have lost as a result of our discrimina- tion against her. All our employees are free to become, remain, or refrain Dated By MONTGOMERY WARD & CO., INCORPORATED (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions , may be directed to the Board 's Office, 1625 Federal Office Building , 1240 East Ninth Street , Cleveland, Ohio 44199, Telephone 216-522-3715. Copy with citationCopy as parenthetical citation