Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

Apr 9, 1973

202 N.L.R.B. 978 (N.L.R.B. 1973)

978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Montgomery Ward & Co., Incorporated and Depart-
ment Store Employees Union Local 1100, Retail
Clerks International Association , AFL-CIO.
Montgomery Ward & Co., Incorporated and Depart-
ment Store Employees Union Local 1100, Retail
Clerks Union Local 648 , Retail Shoe & Textiles
Salesmen 's Union Local 410, affiliated with Retail
Clerks International Association , AFL-CIO;
Warehouse Union Local 860, Garage & Service
Station Employees Local 665 , affiliated with
International Brotherhood of Teamsters , Chauf-
feurs , Warehousemen and Helpers of America; and
International Association of Machinists and Aero-
space Workers, Peninsula Auto Mechanics Lodge
1414, AFL-CIO, Joint Petitioners. Cases
20-CA-5988 and 20-RC-9094
April 9, 1973
DECISION. ORDER, AND DIRECTION
OF SECOND ELECTION
By CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On June 7, 1971,1 Administrative Law Judge
George H. O'Brien issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions to the Administrative Law Judge's Deci-
sion and a supporting brief, the General Counsel
filed cross-exceptions, and the Charging Party filed
an answering brief, cross-exceptions, and a brief in
support of cross-exceptions.
Thereafter, the Board, by order dated February 29,
1972, remanded this case for a further hearing on
certain credibility resolutions made by the Adminis-
trative Law Judge.2 On April 26, 1972,'a hearing was
held before Administrative Law Judge Leo F.
Lightness and on June 12, 1972, the Administrative
Law Judge issued the attached Supplemental Deci-
sion. The Respondent filed exceptions to the Supple-
mental Decision with a supporting brief, and the
General Counsel and the Charging Party filed briefs
in support of the Supplemental Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions, cross-
' The title of "Trial Examiner" was changed to "Administrative Law
Judge- effective August 19. 1972.
2 These concern the conflict in the testimony of employees Gregor and
Reine concerning Gregor's asserted solicitation of Reine during working
hours.
:' On March 16. 1972, Administrative Law Judge George H. O'Brien
disqualified himself from further proceedings herein.
' We also affirm Administrative Law Judge Lightner's findings of fact
exceptions and briefs, and has decided to affirm the
Administrative Law Judge O'Brien's findings. and
conclusions, and to adopt his recommended Order
for the reasons stated below.4
We agree with the Administrative Law Judge that
Respondent violated Section 8(a)(1) of the Act by its
supervisor, Gerd W. Zimmerman's interrogation of
and threatening of an employee regarding her union
activities and creating the impression of employer
surveillance of the employees' union activities. We
also agree with the Administrative Law Judge that
because this conduct as well. as other conduct of the
Respondent occurred within the critical election
period, the election in Case_ 20-RC-9094 should be
set aside and a second election directed.
We further agree with the Administrative Law
Judge that Respondent violated section 8(a)(3) of the
Act when it discharged Martin Pecorvsky on January
21, 1970. While the Administrative Law Judge cited
and relied on statistics relating to various pay periods
prior to October 1969 in which Pecorvsky failed to
make commissions equal to his draw of $100 per
week, we would note that the record also shows that
during the 12-week period beginning with the week
ending October 1, 1969, and ending with the week
ending . December 17, 1969, Pecorvsky's weekly
earnings exceeded his draw in every week but one.
His earnings during this period, on an average,
exceeded his weekly draw by $82.27. In addition,
Pecorvsky was on vacation for the last 2 weeks of
December 1969. Thus, Respondent could only have
"reacted" to Pecorvsky's failure to meet his draw
during the first 3 weeks of January 1970. Yet,
according to Respondent's own procedure, Pecorv-
sky was' entitled to at least 1 more week and possibly
as many as 3 more weeks in which to work off his
excess draw before the excess draw would have been
written off by the Respondent, thereby subjecting
Pecorvsky to possible discharge or transfer. Nor can
we accept the contention that Pecorvsky was let go in
January 1970 for any shortcomings in earnings that
occurred in 1969, all of which had to have occurred
prior to the last quarter of the year 1969 during
which his earnings far exceeded his draw. In view of
Pecorvsky's union activities and Respondent's
knowledge thereof, and absent any reasonable
explanation for failing to live up to its own
procedural requirements, and in the face of Pecorv-
sky'.s relatively successful final 1969 quarter, we
that Gregor did not solicit Refine on working time. Respondent again
excepts to the credibility resolutions respecting this phase of the case. It is
the Board's established policy not to overrule an Administrative Law
Judge's resolutions with respect to credibility unless the clear preponder-
ance of the relevant evidence convinces us that the resolutions were
incorrect . Standard Drv Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d
362 (C.A. 3). We have carefully examined the record and find no basis for
reversing his findings.
MONTGOMERY WARD & CO. 979
agree with the Administrative Law Judge that the
reasons advanced by Respondent for the discharge
of Pecorvsky were pretextual, and that he was
discharged because of his activities on behalf of the
Union.
As to the discharge of McGaughy, we are of the
opinion that he was discharged in violation of
Section 8(a)(3) of the Act. In reaching this conclu-
sion, we find it unnecessary under the particular facts
of this proceeding to resolve any credibility resolu-
tions, for regardless of whether we accept Johnson's
or McGaughy's version of the incident we are of the
opinion that there was no solicitation within the
meaning of Respondent's posted rule. The testimony
of both., employees clearly shows that the conversa-
tion between the two employees began just before
closing time and involved a discussion about the boat
Johnson was in the process of preparing for the sales
floor. During the course of the conversation the price
of the boat came up and the question of a sales
commission or the lack thereof arose. At this point,
accepting Johnson's version of the conversation,
McGaughy during the course of the conversation
only mentioned that if the Union were voted in there
could be a commission earned on such "big ticket"
sales. Again, accepting Johnson's version of the
conversation, McGaughy also mentioned that the
Union sponsored dinners where Johnson could
probably learn more about the benefits.
In our opinion, this was nothing more than a
conversation between two employees who frequently
had discussions with each other during the course of
their employment. Thus, there was no direct solicita-
tion, and there is no showing that .Johnson at any
time stopped working. The fact that the conversa-
tion, whether by design or happenstance, eventually
turned to the benefits of having a union in the store,
does not, in our opinion, raise such a conversation to
the status of solicitation. We would reach that same
conclusion even if we ignored completely Johnson's
testimony before the Trial Examiner and relied solely
on Johnson's written statement given to Respon-
dent's officials the day following the incident, for in
that statement, Johnson, in addition to stating that
McGaughy mentioned some benefits, said that
McGaughy asked him if he was going to join the
Union and if he was going to vote for the Union.
Again such comments and questions during the
course of an otherwise normal conversation do not,
in our opinion, elevate „such a conversation to the
status of solicitation within the meaning of Respon-
dent's rule.5 Our conclusion herein is further sup-
ported by Respondent's treatment of Fothroe's
Store Manager Brandt testified himself that a conversation between
two employees about the Union would be grounds for discharge if it
involved direct solicitation . " ( Emphasis supplied.)
involvement in the conversation. If it was not a
normal conversation between two employees then
Fothroe's "butting in" and taking an intransigent
stand in discussing the disadvantages of the Union
could not be characterized as other than "solicita-
tion" against the Union, and yet . Respondent
completely ignored Fothroe's participation in the
incident. In our opinion, Respondent's treatment of
the Fothroe aspect of the incident is the only result
compatible with a reasonable interpretation of
Respondent's posted rule. This incident was noting
more than another of the inevitable conversations
that occurs between employees while at work.
Accordingly we find that Respondent seized on this
minor incident using it as a pretext to discharge
McGaughy because of his support of the Union in
violation of Section 8(a)(3) of the Act.
We have adopted the Administrative Law Judge's
finding that Gregor did not violate Respondent's no-
solicitation rule. Accordingly, as Gregor was dis-
charged for soliciting employee Reine to join the
Union, albeit in the mistaken belief that the
solicitation occurred on working time , we find that
he was discharged because of his union activities in
violation of Section 8(a)(3) of the Act.
Even if we assume, contrary to our findings of fact,
that Gregor and McGaughy engaged in union
solicitation in violation of Respondent's rule, we
find, in agreement with the Administrative Law
Judge, that Respondent violated Section 8(a)(3) of
the Act when it discharged them and Jerry Likissas
for such solicitation. The record shows that although
the rule is otherwise lawful, Respondent's application
of the rule in the instant case clearly shows that it
was arbitrarily and discriminatorily applied to these
three employees in order to impede and discourage
union activity on the part of its employees. The
record is replete with instances of solicitations on the
selling floor sponsored and/or condoned by the
Respondent for various purposes including a Christ-
mas party, the United Campaign, a savings bond
drive, and a company picnic as well as solicitations
for automobile insurance and a Dale Carnegie course
for various members of the sales staff. Many, if not
all, of these solicitations took place within a 6-month
period antedating the advent of the-Union's organi-
zational campaign amongst Respondent's employees.
Despite these many and varied solicitations, it was
not until the advent of the Union that the Respon-
dent took any steps whatsoever to enforce its rule
against solicitations for "unions, or fraternal reli-
gious, social, or political organizations." Notwith-
standing its posting the rule and warning employees
that soliciting for unions was prohibited, Respondent
allowed widespread and indiscriminate solicitations
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
both on the selling floor over the loudspeaker and at
the cashier's cage, on behalf of an employee party it
was encouraging employees to attend. Respondent
cannot now be heard to say that its application of the
rule against union solicitations. was necessary to
protect the efficient operation of the. store. In these
circumstances we, in agreement with the Administra-
tive Law Judge, find that Respondent applied its no-
solicitation rule for the purpose of impeding or
discouraging its employees' right to engage in union
activities, that the rule was applied in a discriminato-
ry manner, in violation of Section'8(a)(1) of the Act,
and that such a discriminatory application to effect
the discharge of the three named employees violated
Section 8(a)(3) of the. Acts
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 Administrative Law Judge as
modified below and hereby orders that the Respon-
dent , Montgomery Ward & Co., Incorporated,
Serramonte Shopping Center , Daly City, California,
its -officers , agents , successors , and assigns , shall take
the action set forth in Administrative Law Judge
O'Brien's recommended Order. -
IT IS FURTHER ORDERED that the election conducted
herein on April 17, 1970, be, ' and it hereby is, set
aside.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
6 See Daylin Inc., Discount Division d/b/a Miller's Discount Dept. Stores,
198 NLRB No . 40. In reaching our conclusion herein , we do not rely on or
adopt Administrative Law Judge Lightner's characterizations of certain
observations of Respondent's attorney set forth in in. 9 of the Supplemental
Decision.
TRIAL EXAMINER'S DECISION
and
REPORT AS TO DISPOSITION OF OBJECTIONS TO
CONDUCT AFFECTING THE RESULT OF THE
ELECTION
STATEMENT OF THE CASE
GEORGE H. O'BRIEN, Trial Examiner : This consolidated
proceeding was heard at San Francisco,' California, on
February 23 through 26 and March 1 , 1971. In this
Decision and report , Montgomery Ward & Co., Incorpo-
rated, is called Respondent , and Department Store
Employees Union Local 1100, Retail Clerks International
Association , AFL-CIO, is called the Union. The com-
plaint , issued December 10, 1970 , is based on a charge filed
{
by the Union on March 20, 1970, as amended April 3,
April 16, April 27, and November 18, 1970. The complaint
alleges in substance that Respondent, by discharging four
employees,, by coercive interrogation, threats of more
difficult working conditions and loss of benefits, and by
creating the impression of surveillance, violated Section
8(a)(1) and (3) of the National Labor Relations Act. By an
order of consolidation issued by the Regional Director on
December 10, 1970, certain objections by the Union to
conduct of Respondent 'affecting the results of an election
held April 17, 1970, were placed in issue.
Upon the entire record' in this proceeding, including my
observation of the witnesses , and after due consideration of
the posthearing briefs, I make the following:
FINDINGS . OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent , an Illinois corporation , owns and operates a
retail department store and automobile service center in
Serramonte Shopping Center, Daly City, California.
Respondent annually causes to be shipped from points
located outside the State of California, directly to its Daly
City store, goods valued in excess of $50,000, and the
annual sales of said store exceed $500,000 in value.
II. THE LABOR ORGANIZATIONS INVOLVED
The 'Union and the other Joint Petitioners hereinafter
named are labor organizations within the meaning of
Section 2(5) of the Act.
1III. THE ALLEGED UNFAIR LABOR PRACTICES AND THE
CONDUCT ALLEGED TO HAVE AFFECTED THE RESULT
OF ELECTION
A. The Issues in Case 20-RC-9094
On November 21, 1969, the Union filed a petition for
Certification of Representatives. On February 24, 1970, the
petition was amended by adding, as joint petitioners with
the Union, the names of: Retail Clerks Union Local 648;
Retail Shoe and Textile Salesmen's Union, Local 410;
Warehouse Union Local 860, I.B . of T.; Garage and
Service Station Employees Union, Local 665; and Interna-
tional Association of Machinists, Peninsula Automotive
Mechanics, Lodge 1414.
Pursuant to a Decision and Direction of Election issued
by the Regional Director on March 24, 1970, an election
by secret ballot was conducted on April 17, 1970, in the
following unit:
All selling and nonselling employees employed by the
Employer at its Serramonte store and auto service
facility located in Daly City, California, excluding
employees of independent concessionaires, guards, and
supervisors as defined in the Act.
The tally of ballots served on the parties following the
election disclosed that, of approximately 311 eligible
voters, 293 cast ballots, of which 105 were for, and 169
The posthearing motion of the General Counsel to correct the
stenographic transcript is granted.
MONTGOMERY WARD & CO. 981
against, the Joint Petitioners. One ballot was void. Timely
objections, designated I through 22, inclusive, were filed by
Joint Petitioners. All objections except those numbered 1,
2, 10, and 11 were subsequently withdrawn.
In his order dated December 10, 1970, the Regional
Director found that these remaining objections raised
substantial and material issues of fact which should be
resolved by a hearing before a Trial Examiner. The
objections in issue are:
1. On or about January 16, 1970 [Respondent]
suspended the employment of Frank Gregor, Jerry
Likissas and Jim McGaughy because of their member-
ship in or activities in behalf of [the Union].
2. On or about January 21, 1970 [Respondent]
terminated the employment of Frank Gregor, Jerry
Likissas, Jim McGaughy and Martin W. Pecorvsky
because of their membership in or activities on behalf
of [the Union]. . . .
10. Since on or about November 21, 1969 and
continuously to date [Respondent] has published and
discriminatorily enforced an illegal no solicitation rule.
11. Since on or about November 21, 1969, and
continuously to date, [Respondent] has coercively
interrogated employees concerning their union activity,
threatened employees and promised benefits to em-
ployees, and has engaged in.surveillance of employees
engaging in protected concerted activities.
B. The Issues in Case 20-CA-5988
1. Whether Respondent's no-distribution, no-solicita-
tion rule was discriminatorily applied to prohibit only
prounion solicitation while permitting other types of
solicitation.
2.- Whether Frank Gregor and James McGaughy
engaged in conduct violative of the Respondent's pub-
lished rule.
3. Whether Respondent's invocation of the rule to
justify the discharges of Frank Gregor, James McGaughy,
and Jerry Likissas was pretextual.
4. Whether Respondent's assertion that Martin Pecorv-
sky "was terminated because of his unsatisfactory selling
performance" was a pretext to disguise a discharge for
protected union activities.
5. Whether remarks made by Department Supervisor
Zimmerman to employee Blasingame on January 6 or
January 7, 1970, violated Section 8(a)(1) of the Act.
6. Whether Respondent's motive in discharging Gre-
gor, Likissas, McGaughy, and Pecorvsky was to discourage
membership in and protected concerted activities on behalf
of the Union.
C. Sequence of Events
The Serramonte Mall is a large, modern, completely
enclosed, and air-conditioned shopping center, containing
2 large department stores, Respondent's and Macy's, about
30 small shops, and at least 3 restaurants. Respondent's
store is a two-story structure. All selling is done on the
ground floor. Administrative offices, the cashier's cage,
and a large conference room, called the Wendy Ward
Room, are on the second floor. Respondent's store opened
for business on July 31, 1968. The manager was Robert
John Brant. Freymann was the operating manager. Donald
L. Carey was personnel manager. Thompson was security
manager. Each of the 30 or more departments in the store
is under a working supervisor called a department
manager. It was stipulated that all Respondent's depart-
ment managers, and the staff above them, were supervisors
within the statutory definition. Since the store is open in
the evenings and 7 'days a week, there is an assistant
manager in each department who functions in the absence
of the department manager. The assistant managers do not
come under the statutory definition of supervisor. The
bargaining unit comprises approximately 300 employees,
of whom about 50 are paid by "draw against commission."
Lloyd A. (Red) Orcutt, an organizer employed by the
Union, made personal contact with some of Respondent's
employees in the open mall, outside the store in November
1968. On November 28, 1968, a few of Respondent's
employees met with Orcutt and his assistant, Frances
Spahn, at the Sierra Bowl, outside the shopping center, and
the first authorization cards were signed. The first union
handbills were distributed at the employee's entrance
shortly thereafter. By early spring 1969, Personnel Manag-
er Carey had identified Orcutt and Spahn as the union
organizers.
On September 17, 1969, about 15 of Respondent's
employees had dinner with Orcutt and Spahn at the Sierra
Bowl. The Union sponsored a second dinner in a private
dining room at the New Southern Restaurant, outside the
shopping center, on Sunday, October 5, 1969. About 25 of
Respondent's employees attended.
Next morning, before the store opened, commission
saleswoman Shirley Witham and commission salesman Eli
Lisha discussed the dinner while working in the shoe
department stockroom. Alfred Hung Lee was working in
the adjacent hardware department stockroom. Lisha
handed to Lee, a hardware salesman, a union authorization
card and explained it to him. Lee, that same morning, went
upstairs to Carey's office and told Carey that he had been
solicited by Lisha and Whitham. Carey told Brant that Lee
had complained that he was being solicited for union
membership. Brant called Lee to his office. Lee showed
Brant the union authorization card, said he did not think it
was right that he should be solicited while he was working,
and he wished to make a complaint. Lee identified Lisha
and Whitham as the solicitors.
Brant then called Lisha to his office, and, in the presence
of Carey required Lisha to read to himself one paragraph
from Respondent's personnel manual. Brant then read
aloud to Lisha the same paragraph from the manual, and
at the conclusion of the reading told him that if this
violation of company policy should happen again Lisha
would be terminated. The manual text was:
DISTRIBUTION OF LITERATURE AND
SOLICITATION ON
COMPANY TIME FOR NON-COMPANY
ACTIVITIES
Employees may not distribute union literature or solicit
membership in unions, or fraternal religious, social, or
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
political organizations on Company time, or while
employees to whom literature is being distributed, or
whose membership is being solicited, are on Company
time. Company time is that time which the employee is
scheduled to be on duty and for which the employee,is
being paid, excluding rest periods, lunch periods, and
time before and after the employee's working day.
Solicitation is permitted on Company property so long
as the employees, both those soliciting and those being
solicited, are on their own time and the solicitation is
conducted in a quiet and orderly manner and does not
interfere with the operation of the Company's business.
Meetings or speeches are not to be permitted; solicita-
tion which results in disturbing or interfering with the
work or function of any of the employees or depart-
ment is forbidden; solicitation which is detrimental to
maintaining the premises in a clean and attractive
condition is forbidden.
Only employees of Wards shall be permitted access to
any part of the Company's property not open to the
general public. Non-employee representatives may visit
only those parts of the Company premises open to the
general public-public cafeterias, public washrooms
and sales floors. Such persons must conduct themselves
in a quiet and orderly manner while on such Company
premises; they may not distribute literature, make
speeches, hold meetings, or disrupt the working time of
any employee or the operation of any department.
Carey then called Whitham to his office, showed her the
manual, read the foregoing rule aloud, and told her that if
she were caught handing out union literature on company
time she would be "fired."
Brant then caused to be typed on Respondent's letter-
head paper, the text of the foregoing with the following
caption in lieu of that appearing in the manual:
TO: ALL EMPLOYEES
COMPANY POLICY-RULES OF CONDUCT
RE: DISTRIBUTION OF LITERATURE'
Brant's typewritten letter was posted on all employee
bulletin boards on Thursday, October 9. At a regular
meeting of department managers on. Friday, October 10,
Brant directed the department. managers to call this
"company policy" to the attention of their subordinates
and in the words of Sewing Machine Department Manager
John L. Mendez, "to keep our mouths shut and our eyes
and ears open."
Prior to October 9, 1969, there was no posted notice
forbidding or restricting any type of solicitation at any
time, and the rule in the personnel manual was not
communicated to any employee (other than possibly a few
department managers) prior to Monday, October 6, 1969.
Later in October 1969, a committee was selected to make
arrangements for a Christmas party. Personnel Manager
Carey was the chairman and the other members were: Lois
Cook, George Couchman, John Mendez, and John
Rosette. The committee selected the date-December
5-and the location-Elks Club-got out publicity, and
sold tickets. Department managers at their regular meet-
ings were told "to get their employees to come to the
party." Announcements were made over the loudspeaker
before the 9 a.m. store opening and during working hours
that tickets could be obtained in the personnel office, or
from the cashier at her cage , or from members of the
committee. At committee meetings , Carey told his fellow
members that they could not sell tickets on the sales floor,
and that the only place they could sell tickets was, on their
coffeebreaks or lunch hours, in the buffeteria or outside the
store. Carey's secretary, Lois Cook, gave Gregor 20 tickets
to sell. (Gregor was the sports editor of Respondent's
newspaper, "Monty's Words"). Cook placed no restrictions
on Gregor, and he openly solicited other employees in
other departments on the selling floor during working time.
Carey and Operating Manager Freymann were aware of
the fact that Gregor was selling tickets.
The Union's third dinner was held at the New Southern
Restaurant on Sunday evening, January 11, 1970. About 35
of Respondent's employees attended. Gregor, Pecorvsky,
McGaughy, and Likissas sat at the head table with the
Union's secretary-treasurer, Walter Johnson, Orcutt, and
Spahn.
At closing time on January 11, Brant was stationed at the
door bidding the employees "good-night." As Gregor was
leaving, Brant , with whommhe was "rather friendly," asked
if Gregor was going to the union dinner and Gregor replied
in the affirmative.
On January 14, 1970, Respondent distributed to "ALL
EMPLOYEES" a letter signed by Brant stating:
Well the Retail Clerks Union is trying to "climb on the
band wagon" again. Local 1100 has copied manage-
ment again-this time by preparing and distributing a
watered-down version of the attitude survey that the
Company conducted among you in the past few
months. . . .
Let me assure you that no one is concerned with your
welfare more than I am. As you know, it was I who
requested that the attitude survey be conducted among
you and your fellow employees several months
ago. . . . You probably have noticed improvements in
the last few months. These improvements, in many
cases, took place as a result of your constructive
comments on the Company's attitude survey. Other
improvements are planned for the next few months,
and I will be talking to you about them.
I suppose next thing [the Union is] going to try
to take credit for the improvements that store manage-
ment has made based on our attitude survey. Don't be
fooled-neither this Union nor any other Union in the
United States has the power to make any changes in
your wages, hours or working conditions with which
the Company does not agree. That ultimate power rests
as it should with management.
... The best place to come with your suggestions for
improvements is to me. . . . I will personally review all
these suggestions and comments and where changes are
needed, changes will be made. Remember I have the
power to make improvements. The Union does not
without the Company's agreement and remember too
that it costs. you absolutely nothing to come and discuss
problems with me.
On Wednesday, January 14, 1970, Albert John Reine,
while he was working in the paint department, accepted
from Likissas a blank union authorization card.
MONTGOMERY WARD & CO. 983
On Thursday, January 15, there was distributed to
employees the January issue of "Monty's Words" an-
nouncing improvements in the compensation policy for
commission salesmen, improvements in the profit-sharing
plan, and reductions in group insurance rates. On the
evening of January 15, there was a discussion of the Union
between the assistant sporting goods manager, Johnson,
and hardware salesman, McGaughy.
On Friday, January 16, 1970, Gregor, McGaughy, and
Likissas were sent home under suspension.
On Wednesday, January 21, Pecorvsky was discharged
and Gregor, Likissas, and McGaughy were notified by
telephone that their suspensions had been converted to
terminations.
D. Discharge of Gregor and Likissas
1. Reine's testimony
Albert John Reine is a college student employed part
time in the paint department of the Daly City store since
August 1968. He is paid by the hour and does not receive
any commission on sales. His hours of work were either
from 1 to 5 p .m. or from 1:30 to 5:30 p.m.
On Wednesday , January 14, 1970 at about 2 p.m.,
.. . Mr. Frank Gregor approached me . . . and he
said , "I hear you work kind of good , How about an
ap?" ... I said, "What do you mean?" "Well" he said,
"I'll get you an ap", and he left and I just continued
doing my work , and then at approximately two o'clock,
a man I didn 't know at the time-we just called him
"Jerry", or "Jerry the Greek"-his name is Mr.
Likissas-approached me and he gave me . . . a union
application . . . . I said I would think it over.
Mr. Likissas was asking about some outside paint for
his mother's house . . . and while he was talking about
paint he was explaining some of the benefits in between
. .. he mentioned something about a dental plan .. .
if the union went through you'd get a dental plan .. .
and I think I recall saying to him "But I have good
teeth." And then he mentioned something about part-
time employees, or any employee would be getting
double time for Saturday. And, I don't know. Double
and a half or tripple for Sunday. Meanwhile he was
deciding on a color for his mother's outside paint. .. .
I just said I would think it over, and I explained to him
about our paint, and gave him the sales pitch.
* * * * *
Well I talked it over with my parents that night, and I
came to the conclusion that the next day-this would
be Thursday. He first approached me on Wednesday. I
told my department manager that I'd been-approached,
and I honestly. didn't know what to do about it, and I
didn't want to get involved, and because I was afraid I
was going to lose my own job, I was kind of scared.
* * * * *
Well I talked it over with my parents, the first day after
I was approached, and, they told me some of the things
that have happened to them in their experiences of
growing up. So did some of my other relatives, and I
came up to the conclusion of what I thought was right,
and I said I knew to myself that it was against the store
rules. And possibly I could be fired, if I continued with
this action, and it would probably be better to my
advantage to let the company know what was happen-
ing, if anything should happen, that I honestly wasn't
trying to do something I knew was against the store
rules. And so, just for my own protection, I reported it
to my department manager, and went from there to our
protection department and Mr. Carey and Mr. Brant,
the union relations manager.
About 45 minutes after Reine started working on
Thursday, January 15, Likissas came around again, asked
if Reine had the application filled out and Reine replied,
"I'm still thinking it over." Likissas then repeated some of
the benefits of the Union and told Reine that there was no
rush, that he could just mail in the application.
On Thursday, January 15, whether before or after the
second conversation with Likissas is not clear, Reine told
his manager, Donald C. Smith, that he had, been ap-
proached. Reine then went upstairs to Brant's office and
I believe I told Mr. Brant that I was approached by the
Union, and I explained to him what had happened, and
he told me, "If you would like to make a statement
there would be no problem. Is there anything for
you-could you make a statement on your own free
will? If you would like to, and if you would see Mr.
Thompson"-and I told Mr. Thompson, I believe in
Mr. Carey's office, with Mr. Davis -and I made a
written statement of the actions that I have just told
you.
On Friday, January 16, "I went up to Mr. Carey's office,
they wanted me to make a positive identification of the
man I was talking about, because I believe they have two
salesmen who were of Greek nationality in that depart-
ment." Reine went back downstairs, followed by Mr.
Carey and a man from the protection department. Pointing
to Likissas, Reine said: "This is him."
Reine did not work on Sunday, January. 11, and was not
in the store on that day.
2. Gregor's testimony
Frank Gregor was first employed at Respondent's
catalogue store on Irving Avenue in San Francisco on May
12, 1965. In June 1968, while working for Respondent at its
south San Francisco store, he applied to Carey for
assignment to Serramonte. In answer to Carey's inquiries,
Gregor stated that he sympathized with some of the people
who did desire to join the Union, but that as a commission
salesman the Union would not benefit him to any extent
"inasmuch as I was retired from the military service after
23 faithful years." From the time the Daly City store
opened, Gregor worked as a commission salesman in
major appliances (refrigerators, freezers, washers, driers,
ranges). Gregor was acquainted with Reine's parents and
"was responsible for getting Reine employed." Gregor had
known Likissas since 1965 and signed a union authoriza-
tion card for Likissas in the latter part of 1969. Shortly
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after the store opened , appliance salesman Vanderwater
began collecting $ 1 a week ' from other "big ticket
salesmen" to throw a party. During the Bay Area United
Fund campaign in 1968, Gregor contributed his "fair
share." Following a meeting in the Wendy Ward Room
which was part of the 1969 campaign , he told Carey that he
would not again give 1/2 percent of his earnings. Some
days later on the selling floor during working hours, Carey
"approached me concerning the United Campaign." Some
days later two management trainees on the selling floor
during working hours said , "We came by to collect for the
United Campaign, Bay Area Crusade ." Gregor replied,
"Would you please not bother me now ? I will contact you
sometime else, some other time," and walked away. On one
occasion , Lois Cook asked Gregor to contribute to a gift
for an employee who, was leaving. On another occasion,
Vanderwater asked for an application card . Gregor replied,
"I will see that you get one ." Gregor passed the request on
to Likissas.
On Sunday afternoon , January 11, Gregor was sitting
alone in the buffeteria:
Mr. Reine approached me and asked me whether I
was going to the dinner that night . I said , "Yes, I am,
Al. It will do you some good to go down yourself
because you , as a salaried employee should come down
and find out what is going on.
On Sunday evening, when Brant asked Gregor if he was
going to the union dinner:
I said , "I sure am." - I just notified -my wife not to
prepare dinner for me. I am, going down to the union to
have dinner" .. . His comment was, "I would like to
go with you." I said , "Be my guest".
On either Monday, January 12, or Tuesday, January 13,
John Feijo, a commission salesman in the sewing machine
department, asked Gregor for a union application . Gregor
told him to see Likissas.
It was the practice in the big ticket departments for the
department manager to obtain the paychecks of the
salesmen in his department and to distribute them on the
floor. Wednesday was payday. Wednesday, January 14,
and Thursday, January 15, were nonwork days for Gregor.
At about 10 a.m. on Wednesday , Gregor called at the store
and asked the assistant department manager, Dick Severi,
for his paycheck . Severi replied that Gregor would have to
go to the cashier 's cage and be paid in cash. After
collecting his pay, Gregor visited eight employees in three
or four departments, seeking information for his sports
column in "Monty's Words." About the middle of his
rounds , when entering the buffeteria , he noted that he was
being followed by a security officer. Gregor left the store at
noon and went home to lunch with his son.
On Thursday, January 15, Gregor entered the store by a
customers ' entrance, deposited his copy of "Monty's
Words" on Lois Cook 's desk and left without talking to
any employee.
At about 4:15 p.m. on Friday, January 16, while Gregor
was talking to a customer , Severi told him that he was
wanted upstairs by Carey. Gregor replied that he would be
up in a few minutes . A few minutes later the message was
repeated by the department manager, Maxwell, who
received the same reply . Another few minutes and Carey in
person invited Gregor upstairs . As they entered Carey's
office , Gregor observed the security manager , Thompson,
sitting at Carey's desk . One other person was also in the
room . Carey left and Thompson said:
"I have been directed to run an investigation on the
solicitation by the union . . . . It has been reported to
me that on Wednesday you contacted a boy in the
paint shop and you wanted to sign him up for the
union. ,..." I said This is a big lie . I will tell you right
now somebody fabricated this story. I was not in the
store on Wednesday. He said, "Do you mean to tell me,
Mr. Gregor, you were not in the store on Wednesday?"
I said , I beg to differ with you, I was in the store on
Wednesday and I will tell you exactly what I did in the
store and whom I contacted.
Gregor then described his movements in detail . Thomp-
son asked if he was willing to make a statement, and
Gregor replied, "I sure will." As Gregor started to write. his
statement , Thompson said:
.No, I will tell you what to write ." He told me how to
start it and I wrote it out and I gave him my statement
to the best of my knowledge. I indicated I had no
knowledge whatsoever of contacting Mr. Reine in the
paint shop or anyone else concerning union activities.
Thompson picked up Gregor's statement and he and the
other individual left the room . Carey returned and
announced that Gregor was being suspended "until such
time as an investigation is completed ." Carey added that
Gregor would receive his regular draw during his suspen-
sion . Gregor asked for his pay to date . Carey went with
Gregor to the cashier 's cage where he received his pay
through January 16 in cash . Gregor turned in his briefcase
to Maxwell , left the store , and has not returned for any
purpose since. -
On Wednesday, January 21, 1970 , at 4:15 p .m. Carey
telephoned Gregor and announced : "Frank, your employ-
ment at Montgomery Ward is terminated . . . for union
solicitation . . . you can come up and get your pay any
time ." Carey complied with Gregor's final request that his
pay be mailed to him.
3. Likissas' testimony
Jerry Likissas began working for Respondent at its
Chestnut Street store August 15, 1966, and transferred to
Serramonte 2 weeks before the grand opening . He worked
in the rug department as a commission salesman under
Department Manager Kearney . In August 1968, during
working hours on the selling floor , Likissas purchased
automobile insurance from an agent introduced to him by
Kearney. He was solicited many times for personal gifts.
The first'occasion was right after the grand opening in 1968
when "somebody from the office" came down and asked
Likissas whether he wished to contribute to a gift for a
merchandiser who was being transferred . The last was
sometime in November or December 1969, when a lady
came down from the payroll department and asked him to
contribute to a gift for another lady who was retiring after
25 years of service. Likissas gave $1. During the United
Bay Area Crusade in 1969, Likissas did not respond to an
invitation over the loudspeaker to attend a meeting in the
Wendy Ward Room. Immediately after the meeting, in the
MONTGOMERY WARD & CO. 985
rug department, Carey. said "Jerry, you didn't attend the
meeting." Likissas replied that he could not spare the time.
Next day Carey personally solicited, a contribution and
Likissas gave him $5. Likissas bought tickets to the
Christmas party from Gregor during working time and
observed Department Manager Mendez selling a ticket to
Feijo, also during working time.
At a meeting in the Wendy Ward Room addressed by a
company official, a questionnaire was distributed with
about 100 questions, including "are you a member of the
union, like the union, if you like the company, how long
are you with the company."
In November 1969, Mendez entered the carpet depart-
ment about 10 a.m. and, addressing Likissas and his fellow
salesman, Snyder
.. , says, first of all, "Hey, you guys, have you joined
the union?" Mr. Snyder says, "That is my business. If
you ask me personal that is my business." He said,
"You might be fooled, you know to join the union
because you know what you have coming" I said,
"What do you mean by that, what we have coming?"
He said, "You will go out of the store as soon as the
company finds out you are members of the union." He
told me, "You, as a matter of fact, are very active. I
have information you are very active member of the
union." I said, "Listen, this is the selling floor, this is
the company's time and my time and I want no
conversation about that in the middle of the floor." He
says, "Well, listen, if you want to keep your job, boy,
don't get too smart." He left and went across the
department.
When cross-examined about the foregoing, Likissas
added the following details:
And besides that, you just remind me, he says "you are
already on the blackboard Jerry, Be careful you are
going to be out the door. . . . He warned me, he said,
"I am warning you."
Shortly before Christmas 1969 when Kearney returned
from lunch, he announced to Likissas and Pecorvsky:
"Somebody by the name of Red he approached me
outside and he asked me if I wanted to join the union
.. and I told him I wish I, could, but I am the
manager, I can't." [Kearney] says, "You know what
they want from us? All they want is just our money, we
commission people, and we would be crazy to join the
damn union."
On Thursday, January 15, 1970, at about 5 p.m., Likissas
asked Reine, from whom he had "bought a lot of paint,"
what kind of paint he should use for the outside of his
mother's house. After Reine had stated his opinion and
Likissas was ready to go,
I asked him, "A], do you know anything about the
union?".He says, "Oh, yes, Jerry, but I haven't signed
anything. I hesitate, you know, because from what I
hear the unions go after our money." I said, "Oh, this is
baloney. We have a lot of benefits, you know." He
says, "I hear about dental insurance, hospital insur-
ance, things like that." I said, "Well to my knowledge,
everything is true. I know the union gives 100 per cent
hospital insurance as well as dental insurance." I pulled
out an application from my hand and I said, "Here, Al,
take it home and if you like it, sign it and give it back to
me, if you don't like it throw it in the garbage can."
And I left.
Describing the same incident on cross-examination,
Likissas testified:
Q. (by Mr. Chevalier) Then you handed Mr. Reine
an application, I believe you testified, is that right?
A. Right.
Q. How did you hand it to him, rolled up in
something?
A. No. I had it folded in my pocket. He was giving
me some literature to read about the vinyl paint for the
outside of the house. He was doing this and I was doing
that.
Q. Did you have the application inside something
else in your pocket?
A. No. I have just one in my left pocket and I do
this, I just took the literature for the paint, put it on top
of the literature and I said, "This is the application."
He put it on top of the counter.
Likissas immediately thereafter affirmed the truth of the
following portion of a pretrial statement dated February 5,
1970:
A] said "I'll have to think about it". I believe I had a
magazine in my .hand, rolled up into a tube and the
union application card inside the magazine. I pulled
out the union application card and handed it to Al and
said, "Al, this is a union application-do you want to
take it home and think about it?"
On Friday, January 16, 1970, Carey called Likissas on
the intercom and asked him to come to the office. Likissas
replied that he was engaged with a customer. Five minutes
later Carey called again , told him to leave the customer
and come to the office "right now." When Likissas entered
Carey's office, Thompson was sitting at the desk and Carey
and another man were in chairs to the side.
Mr. Thompson, the security officer said, "sit down
Jerry . . . I have to talk to you. . . . Did you give an
application to somebody by the name of Al?" I said,
"No, I don't give no application to nobody." . . . He
says, "Well, never mind about that. I want you to sign a
statement, a written statement, and tell me all about it."
I am not going to write no statement to nobody. Then
Mr. Carey took these two men . . . outside his office
... and then they came back. So Mr. Carey told me,
"I have to terminate your employment Jerry." I said,
"What for? I am with the company almost four years
and it happens to be one of the finest salesmen you
have in the department." He says, "I can't tell you the
reason right now, but I am terminating your employ-
ment. You can wait outside for your check." I said,
"No, sir, I no wait outside for my check. You can mail
my check". He said, "I am going to take you down to
the department." Before we went he said, "I have to
investigate and then I will let you know, but you have
to go home now. You are terminated.
On Carey's instructions, Likissas delivered to his manag-
er the carpet samples which he was required, as an outside
salesman, to carry in his car, and left the store. In response
to leading and suggestive questions by the General
Counsel, Likissas further testified:
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.. . they asked me if I was attending the union
dinners. . . . Well I went there and he said, "You were
involved in dinners and things like that. You gave an
application to Al," that's the' way they accused me
when I got to the office. . . . He told me, "You went to
the union dinner ." I said , "How do you know, you
wasn't there. How do you know I was attending the
dinner?" Anyhow, I didn't tell him anything. I refused
to answer the questions, you know.
Questioned further by counsel for the Union, Likissas
identified Thompson as the speaker and:
Q. (By Mr. Jellison) Do you recall any other details
he said about union activities or union dinners if he
said anything?
A. Well, this is how he accused me, you know, he
accused me, "Would you like to tell us what you have
been doing there?" He said who else was there and
things like that. I said, "I don't know nothing about it."
Then he told me, "You gave an application to Al," you
know, from the paint shop. I said, "Who is Al?" He
says-
Q. (interrupting) You don't need to repeat it over
again what was said. 11
On Wednesday, January 21, 1970, at about 5'p.m., Carey
telephoned Likissas:
He said, "Jerry, I terminated your employment today.
You are going to receive all your money." I asked Mr.
Carey, "Mr. Carey, are you going to tell me specifically
why you fired me for?" He said, "Yes, Jerry, for union
activities."
On April 15, 1970 (2 days before the election), at about
9:10 p.m., while Likissas and Pecorvsky were standing at
the' employee 's exit , preparing to distribute leaflets,
Freymann came out and
Mr. Pecorvsky was handing out a letter like this and
smiling; he said, "Mr. Freyman, do you want to read
about it? He said, "I don't want to read that junk. I
already have one in my office on my desk. . . . I was
just explaining to the girls what kind of crooks you are.
How much money are you getting to do that? . . . Why
don't you all go to Russia. As long as I am here, the
damn union will never step up in this store. I had rather
fire all you animals to keep the union out of it."
On cross-examination, Likissas testified that he had
never read any notice on any bulletin board and specifical-
ly had not read Brant's notice of October 9, 1969. Although
he carried authorization cards and signed up a number of
employees outside the store, he never solicited any
employee, other than Reine, anywhere in the store at any
time.
4. Smith's testimony
Donald C. Smith has been department manager of the
paint department since August 1968. On Wednesday
afternoon, January 14:
Jerry, the.Greek . . . came to the paint department and
Al went up . . . to help him with some paint... .
After Jerry left, Al came to me and told me . . . that
Jerry was discussing the union with him. . . . Well, at
the same time he also reported that Frank Gregor had
approached him at an earlier. time, and there was. a
second incident when Jerry, the Greek came to the
paint department.... Al, to me at the time , appeared
to be somewhat shook up by it, the whole situation. So
I reported to Mr. Brant that Al had been approached
by a fellow from the carpet department for union
solicitation.
5. Carey's testimony
Donald L. Carey is presently merchandise manager in
Respondent 's Petaluma , California , store . From May 20,
1968 (6 weeks before the grand opening), to February 1,
1970, he was personnel manager of Respondent's Daly
City store. On Thursday, January 15, 1970, he was called to
Brant 's office, and
Mr., Brant told me that a department manager by the
name of Donald Smith had told him that one of his
employees , Al Reine, had been approached in the paint
department and . . . if Mr. Reine wanted to give a
statement , that we should get a statement regarding
this.
Carey then telephoned Smith and asked him whether
Reine desired to make a statement . Reine came to Carey's
office and
He told me that he had been approached in his
department while he was working by an employee from
the appliance department , Mr. Gregor. He told me that
Mr. Gregor had asked him that if he wanted an
application for the Union. He also told me that an
employee-his name he did not know-had come to
his department and give him the application for the
Union. He indicated that the following day the same
employee had come back to his department to ask him
if he had completed the application.
Immediately after Reine made these statements to Carey,
Reine , Thompson, and Carey went down to the sales floor
and "Mr. Reine pointed Mr. Jerry Likissas out as the
individual who had given him the application." The
following day, Friday, January 16, Carey called Gregor to
his office.
Q. (by Mr. Chevalier) What did you say to him and
.what did he say to you?
A. I said, "Mr. Gregor, there has been a statement
made about you regarding solicitation on the sales
floor" and I asked him if he wanted to give a statement
regarding the incident.
Q. What did he say?
A. He said he knew of no incident, but he would be
willing to make a statement.
Q. Did he?
A. Yes, I believe he did.
Q. You say you believe he did. Are you sure he
did?
A. I don' t recall for sure whether he did or not.
Q. What did he say then?
A. Well, let me back up. As I best recall , I'm sure
he did give a statement.
Q. What did you say or do then?
A. OK. After he gave that statement , I reviewed
the statement with Mr. Brant , the store manager.
Q. When
A. Immediately after he gave the statement.
MONTGOMERY WARD & CO. 987
Q. The same day?
A. The same day, while Mr. Gregor was still in my
office.
Q. What did you do then?
A. Mr. Brant told me that I should suspend, Mr.
Gregor pending further review of the statements.
Q.
A.
Q.
you?
What did you do then?
I suspended Mr. Gregor.
What did you say to him and what did he say to
A. I told him that he was being suspended at that
time until we had a• chance to review the statements
that had been made, and that I would let him know
within a couple of days what the outcome of the review
was.
Q. What did he say to you?
A. I don't recall that he said anything after that.
He just left.
On Friday, January 16, Carey called Likissas to his
office, told him that a statement had been made about him
regarding solicitation on the sales floor, and asked Likissas
if he wished to make a statement. Carey told Likissas that
the accusation had been made by Reine. Likissas replied,
"I know of no solicitation," asked to be confronted by
Reine, and refused to make a statement. Carey then went
to Brant's office, reported what Mr. Likissas had said, and
received instruction to suspend Likissas.
I went back to my office and told Mr. Likissas that he
was being suspended . . . for solicitation on the sales
floor, and I told him I would let him know within-that
we would review the statements that had been made,
and then I would let him know within a couple of days
what the outcome of that review was.
Q. What did he say-then, if anything?
A. I don't recall that he said anything.
Q. What did he do then?
A. He left the office and started back down to the
sales floor. I went with him to his sales floor, to his
department, and, told Mr. Kearney, his department
manager, that Mr. Likissas had been suspended, and
that he should get back any carpet samples that Mr.
Likissas had in his possession.
Q. Why did you do that?
A. The carpet samples are' the property of the
Company, and I felt that they should be in the store
until we completed our review of the statements.
On, Wednesday, January 21, 1970, Carey telephoned
Gregor:
I told him that he was being terminated for violation of
company policy regarding union solicitation on the
sales floor while he was working, or while the employee
being solicited was working.
Q. (by Mr. Chevalier) What did he say to you then,
if you can recall?
A. I don't recall that he said anything specific. He
was surprised, and said, "OK."
Q. Did you say anything else to him that you
recall?
A. No sir.
Carey finally contacted Likissas by telephone on January
23.
I said, "Jerry, we have made a decision regarding your
suspension", and I told him, "You are being terminated
for violation of company policy regarding solicitation
on the sales floor." . . . He asked me again the reason.
He said, "Mr. Carey, I don't understand why I'm being
terminated. Why are you terminating me? So I again
reiterated to him that, "You are being terminated for
violation of company policy regarding solicitation on
the sales floor."
Q. What did he say then?
A. He said, "OK."
Q. Was that the end of the conversation?
A. Yes, sir.
Carey was in charge of the United Bay Area crusade, not
only at Respondent's Daly City store but also on a loaned
executive committee which collected from the employees
of 9 or 10 other stores. United Fund meetings were held at
Respondent's Serramonte store in August and September
in 1968 and 1969, in the Wendy Ward Room on company
time. Carey went down on the floor to invite employees to
the meetings, but did not contact employees on the floor
afterward. "I was too busy concluding campaigns with my
other firms." Carey was unaware of any solicitation of
contributions to buy a gift for fellow employees.
6. Brant's testimony
Robert John Brant has been manager of Respondent's
Serramonte store since March 1968 (3 months before the
grand opening). He authorized solicitations for the United
Bay Area Crusade in 1968 and 1969. After the meetings in
the Wendy Ward Room, the personnel clerk and the
personnel manager make followups to see if the employees
will turn in their cards either for acceptance or rejection.
Respondent keeps a record of the names of contributors
and the amounts of their contributions. Brant also
authorized solicitation for the 1969 Christmas party.
Although Brant spends from 25 percent to 30 percent of his
time on the selling floor, he was unaware of any other
solicitations prior to the complaint of Alfred Hung Lee on
.October 6, 1969. He was not aware of any other
unauthorized solicitation until Wednesday, January 14,
1970. On that date:
Mr. Smith . . . came into my office . . . and he told
me that one of his employees, Al Reine, had been
approached by two parties regarding a union applica-
tion, and that Reine was very upset about it, and that
he wanted to know what he should do about it. . . . I
advised him that . . . he could tell [Reine J that if he
wished to make a statement on the subject, that I was
in my office and would see him whenever he wished.
Within a few minutes after Smith left, Reine entered
Brant's office and
Mr. Reine had told me that he had been approached
on the day before that by Mr. Gregor, and on that day
by someone that he identified as "Jerry", who worked
in the carpet,department, regarding union application.
He said he felt this was very unfair, and that he didn't
like to be approached on the selling floor.... He told
me that on the afternoon of January 13 that Mr.
Gregor had spoken to him in the paint department and
had said something to the effect that he was a very
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
good worker, and wouldn't he like to have a union
application. . . . He then said that on the 14th, in the
afternoon, Jerry came to the department and gave him
an application.
Q. (by Mr. Chevalier) Did Mr. Reine report to you
any other instances that he had been approached on
working time?
A. Not at that time. This was January 14.
Q. Did you see Mr. Reine again regarding this
matter?
A. Yes, I believe on the next day that he came, back
to my office and told me that he had been approached
again by the same person from the carpet depart-
ment... . As I recall, Mr. Reine came to my office
and simply told me that he had been approached again
by the man in the carpet department, Jerry, and that he
had been asked by Jerry for the ap back; that Jerry had
also talked to him for some time about paint, and that
he felt that Don Smith, his department manager had
observed the two of them together but had been too far
away to hear them. At that time I asked Mr. Reine,
would he care to make a statement to Mr. Carey on the
subject and he said he would. So I called Mr. Carey
and Thompson, and Carey took his statement.
On the basis of Mr. Carey's report of his interview
with Mr. Gregor and Mr. Likissas, after examining all
of the statements and ascertaining that the solicitation
rule had been violated, I made the decision to
terminate - Mr: ' Likissas and Mr. Gregor, and I directed
Mr. Carey to do so.
Q. Between the period when you suspended Mr.
Gregor and terminated Mr. Gregor, was there any
further investigation?
A. Other than the examination of the personnel
policy and the statements that were given, no.
The decision to terminate Gregor and Likissas was made
by Brant on Wednesday, January 21, 1970. The reason was
"non-conformity to company policy and violation of the
solicitation rule." Brant directed Carey "to tell them that
they were terminated on the basis of a violation of the
solicitation rule."
7. Mendez' testimony
John L. Mendez has been manager of the sewing
machine department since the store opened . Mendez was
on the committee and sold tickets for the 1969 Christmas
party, but only in the buffeteria and at the party itself.
Mendez understood, from instructions he had received,
that he could be discharged if he sold Christmas party
tickets on company time. Although John Feijo worked as a
salesman in his department, he did not sell a ticket to Feijo.
In November 1969, John Feijo was across the aisle, talking
to Likissas and leaving the sewing machine department
uncovered. Mendez told Likissas, "Leave my employees
alone during working hours." Mendez did not overhear
any part of the conversation. In January 1970, after being
discharged, Likissas accosted Mendez in the store with
insulting and threatening remarks. Mendez did not at any
time make any of the statements attributed to him by
Likissas.
8. Reconciliation of the testimony of Gregor,
Likissas , Reine, Smith , Carey, Brant , and Mendez
Likissas is volatile , loquacious , dramatic, and, I believe,
imaginative . Gregor is careful and meticulous . Thirteen of
his service years were spent in military intelligence. Reine
and Likissas have in common the very human trait of
seeking to justify in the eye of the beholder all of their past
actions and statements by inventing bolstering details,
which once uttered , become, in the mind of the speaker,
unalterable truth . Carey is a laconic individual who gave
the impression of having successfully obliterated from his
memory the detail of an unpleasant business in which he
was a prime actor. Brant 's testimony that solicitation of
Reine by Gregor and Likissas was reported to him on
Wednesday, January 14, cannot be credited. Likissas and
Reine are in almost complete agreement as to the
substance of their conversation when the union card was
passed. Reine's description of the reaction of his parents
has the ring of truth, and fully explains his panicky
confessions the following day. Reine was sure that the card
was passed on Wednesday . He talked to his parents
Wednesday night. He spoke to Brant only once, on
Thursday, and he did not identify Likissas to Carey and
Thompson until Friday.
When Brant told Reine "If you would like to make a
statement, there will be no problem," Reine in his
apprehensive state could only regard these words as a
threat. When Reine was interrogated by the security
officer, he invented , possibly at the suggestion of Thomp-
son, the visit from Gregor on the previous day. Having told
Thompson that he was visited on the same day by both
Gregor and Likissas , this fiction was in his mind translated
into fact . After Gregor 's statement had been taken and his
movements verified , it became apparent to Brant that
Gregor had left the store before Reine reported for work
and could not have spoken to Reine on Wednesday. Brant
then invented ' the Wednesday conversations with Smith
and Reine, with the object of pushing back the Gregor
conversation to a possible date . Furthermore , if Reine had
in fact reported the clear and obvious violation of the
company rule to Brant on Wednesday, Brant would
certainly have required an immediate statement, and not
waited for a second report from Reine.
In support of Reine's testimony that he was not in the
store on Sunday, January 11, records were received in
evidence demonstrating that he did not work on that date.
In further support of his own denial , Reine testified that on
Sunday, January 11, he drove with his family to the
Russian River , a distance of 90 miles from his home, to
observe whether his aunt 's cabin had been damaged by
flood . This portion of his testimony is rendered suspect by
the fact that the Russian River did not rise to damaging
heights until more than I week later.2 I find that Reine,
who lived in the adjacent community of south San
Francisco , visited Respondent's store on Sunday , January
2 Contemporary issues of San Francisco Chronicle, a metropolitan
newspaper of general circulation.
MONTGOMERY WARD & CO. 989 ,
11, and had the conversation in the public buffeteria
described by Gregor . This was the "earlier time" men-
tioned in Smith 's testimony.
There was received in evidence a questionnaire used in
an attitude survey conducted in September 1969 which
constitutes a complete refutation of the testimony of
Likissas that it contained any reference to union member-
ship or sympathies . This evidence of imagination , and the
manner in which the testimony was adduced , causes me to
question the accuracy of Likissas ' recitation of his
interrogation by Thompson . Nevertheless , the failure of
Respondent to call Thompson as a witness , or to offer any
explanation for his absence , and the failure of Carey to
deny this portion of Likissas ' testimony requires me to find
that Thompson did interrogate Likissas concerning the
union dinner of Sunday , January 11.
The same factors cause me to credit Likissas as to the
substance of remarks made by Freymann 2 days before the
NLRB election, since Freymann did not testify.
I do however regard Likissas ' recitation of his conversa-
tion with Mendez in the carpet department in November as
the product of an over fertile imagination . Mendez' denial
is fully credited, particularly in view of the fact that
Likissas was not called in rebuttal to deny any part of the
less than convincing testimony of Mendez , describing his
other contacts with Likissas . For similar reasons, I
discredit the testimony of Likissas concerning the sale of a
Christmas party ticket to Feijo by Mendez on company
time. Other factors tending generally to disparage Likissas'
reliability as a witness are his complicated and contradicto-
ry reasons for failure to read the bulletin board , and his
argumentative insistence on cross-examination that he did
not know the meaning of the word "suspended" though
ultimately and grudgingly admitting that Carey may have
used the word when he was sent home on Friday , January
16. One further factor influencing my decision to credit
Mendez over Likissas is the failure of the General Counsel
to include in his complaint any paragraph which could
possibly be applied thereto.
For the reasons heretofore stated I conclude and find
that Gregor did not violate Respondent 's rule against
distribution and solicitation, that Brant knew, at least by
Wednesday, January 21, 1969, that Gregor had not
violated the rule, and that Brant discharged Gregor to
discourage union membership and protected legitimate
activities on behalf of the Union. Likissas did willfully
violate the rule with full knowledge of the possible
consequences thereof . Whether his discharge was justified
and excused by this fact depends in part upon testimony
hereinafter considered and evaluated.
E. Discharge of McGaughy
1. McGaughy's testimony
James Michael McGaughy was a regular part-time
employee in the hardware and electrical goods department.
He was hired in July 1968 before the store opened. In
October 1969, he signed a union authorization card and
thereafter had several conversations concerning the Union
with his department manager, Alen Klenz. He told Klenz
he was in favor of the benefits the Union was offering,
particularly their medical plan . Klenz did not express any
opinion of the Union . McGaughy distributed about 10
union authorization cards, being careful to observe the
restrictions in Brant 's October notice , which he had read.
In December , while the cashier on the second floor was
cashing his check , she asked him to buy a ticket to the
Christmas party. At the union dinner on Sunday, January
11, McGaughy sat with Orcutt and Spahn.
Conrad (Bud) Johnson was the assistant manager of the
sporting goods department which was separated from the
hardware department only by a wide aisle . McGaughy and
Johnson were good friends, and were planning to go
hunting together in northern California the 'weekend of
January 24-25, 1970.
At about 9:15 p.m. on Thursday, January 15 (15 minutes
before closing time ), with no customers in either depart-
ment , Johnson was cleaning up a large fibreglass boat
which had just come out of the warehouse. The boat was in
the aisle between the two departments.
We started talking about these boats. . . . I asked him
how much the boats were to sell for and he said the
most expensive one would sell for approximately
$2,500. . . . I asked him how many do you usually sell
in a year and he said "quite a few ." I asked him, "Do
you make any commission on these , are you on
commission if you sell one of these boats?" He said,
"No." He said that he had heard that the store in the
future was to offer a 1 per cent commission on the
sales. . . . I told him I had heard of this myself, but
believed this to be one of the benefits the Union had
offered.... At that point he said something to the
effect , "What do you think of the Union, or what is
your opinion of the Union?" I then proceeded to
explain to him I was in favor of the union benefits .. .
especially the dental plan. . . . He asked me what I
knew about the Union and I said , " I actually don't
know that much. If you wish to find out any more
yourself, why don't you personally try and find out.
Contact one of these people from the union or go to
one of these dinners."
At one point in the conversation one of the sporting
goods clerks approached.
Q. (By Mr . Berkowitz) Do you know that employ-
ee's name?
A. I now know his name . His first name is Carl.
Even to this day I don ' t know his last name.
Q. Did Carl participate in that conversation at all?
A. Not that I remember.
Q. He did not?
A. No. He approached us. I don ' t remember if I
was speaking to Mr . Johnson at the time he approached
us, but I noticed him approaching to ask Mr. Johnson a
question, I believe he discussed something with Mr.
Johnson, I was looking and inspecting this boat during
this whole conversation. I believe I just turned my
attention to the boat and away from them to let them
have-their conversation , whatever it was.
Q. Did you offer Bud Johnson a union card at that
time?
A. Absolutely not.
On Friday, January 16, at about 7 p.m., McGaughy was
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called to Carey's office. Thompson was at Carey's desk and
Carey was sitting in a chair on the side.
[Thompson] explained to me I would be paid for the
time I spent in the office. He handed me a sheet of
paper with something written on it to this effect, that I
would be paid for this time, and he had me sign it.
Then he proceeded to explain there had been a charge
filed against me . . . this charge would have an
investigation and I would possibly be suspended for'
this. I then asked him what it all had to do with and he
said . . . "Bud Johnson filed this charge against you in
connection with a conversation you had with him last
night". He then asked me if I would be willing to write
a statement as to what we said in that conversa-
tion. . . . I asked what specifically am I being charged
with and I believe Mr. Carey spoke back and said,
"You will be notified," or something to that effect .. .
at that point I agreed I would write the statement.
[After McGaughy wrote the statement] I asked Mr.
Carey what was going to happen now and he 'said I was
to consider myself suspended, that pending an investi-
gation I would be notified as to the outcome of this
investigation.
McGaughy then left the store. On Wednesday, January
21, McGaughy telephoned Carey.
I asked if there had been a decision made and he said
yes, that I had been terminated, that the store no longer
felt it required my services and that I could come down
either that afternoon or that evening and pick up my
paycheck and my vacation paycheck for the last hours
I had worked.
Q. (By Mr. Berkowitz) In the conversation on the
16th, when you were first called into Mr. Carey's office,
was Carl mentioned in that conversation?
A. No, I jdon't believe so, not that I can remember.
Q. So far as you can remember now, Bud John-
son's name was the only one mentioned?
A. Yes.
2. Johnson's testimony
Conrad (Bud) Johnson was hired by Respondent before
the store' opened in 1968. In January 1970, he was assistant
manager of the sporting goods department under Depart-
ment Manager Cohen. McGaughy was a friend of his and
they had many discussions about many things, including
hunting and fishing. On Thursday evening, about 8:30 or
quarter to 9:
Well, Jim McGaughy came across the aisle and started
talking. Well, he said, "Do you know there's a union
vote coming up?" And I said, "No, I didn't." And he
asked about the boat, and how much it cost, and then
he started talking about the benefits of the Union and
commissions . And then Carl, who was one of my
salesmen, came up for a price, and Mr. McGaughy and
Carl started a little discussion about it. . . . The first
thing that was talked about was the boat. . . . I told
him it was a tri-hull boat, and how it rode and what
engine it used. He wanted to know how much it cost
. then he said, how much commission did you make
on it and I told him none. ... He said did I know of
the benefits of the Union. I said, No, I didn't. He said
that you could make a commission on the boat if the
union was in the store.... Carl came up and . . .
interrupted the discussion.... Carl said that the
Union would just bleed you, and their benefits'weren't
that good. And then Mr. McGaughy said that they
were that good. . . . Mr. McGaughy told me that they
did give dinners. That was before Carl came up .. .
and that he could have someone explain the benefits to
me....
Due to the fact that when Mr. Cohen isn't there - Mr.
Cohen leaves at five o'clock or 5:30, and I'm responsi-
ble for the department after that, and Mr. Cohen is
very strict about the department being run the way he
wants it, and the way he wants it. . . . I went to Mr.
Carey the next day. I told him there was a disturbance
in my department the night before, and it had to do
with the Union. Mr. Carey asked me if I would make a
statement to that effect and I said yes. I was called
upstairs later in the afternoon and I did make a
statement.
On cross-examination , Johnson testified:
[Mr. Carey] wanted to know if they were soliciting; if
the union was soliciting.. .. I told him that Carl got'
excited about it, and that I thought he should know
about it.. . . I told him that Carl had a fight with the
union, and-not a fight. I said that Carl and I had an
argument over-and Jim had a discussion over the
union.
The statement written and signed by Johnson at 5:41
p.m. on Friday, January 16, witnessed by Thompson and
Carey, recites:
My name is Bud Johnson. I am employed as asst. mgr.
in the sporting goods Dept, at Montgomery Wards at
Daly City. I am giving this statement of my own free
will. No threats or promises were made to me. It was
9:00 P.M. and I was working on the boat, this was 1/15
when Jim McGaughy came up to me and asked if I was
going to join the union. I said I did not know. Then he
asked if I was going to vote for the union. I said I did
not know there was going to be a vote. He said they
had dinners and drinks and would explain it. He did
not say when the next dinner was. He did explain some
of the benefits that the union would get for us. This
statement is true and correct to the best of my
knowledge.
3. Carey's testimony
On the afternoon of Friday, January 16,
An employee by the name of Bud Johnson came to my
office and told me he had been approached on the sales
floor the previous night and asked if he wanted to join
the union. . . . He told me he had been working in his
department cleaning the boat. An employee from the
electrical hardware department had come across the
aisle. ... The conversation had begun with the
employee asking about details about the boat and then
had continued when the employee from the electrical
hardware department asked him if he was going to join
MONTGOMERY WARD & CO. 991
the union . . . he identified him as Jim McGau-
ghy. . . . He told me that Mr. McGaughy had asked
him if he wanted to join the Union, and that Mr.
McGaughy had asked him if he was being paid
commission on the boat, and had started talking about
some of the benefits of the Union.
Johnson made a statement to Thompson in Carey's
office. Carey took the statement to Brant and received
instructions to obtain a statement from McGaughy. Carey,
by telephone called McGaughy to his office and in the
presence of Thompson,
I told him that an employee in the sporting goods
department had made a statement regarding solicita-
tion on the sales floor . . . he said he would make a
statement. . . . After Mr. •McGaughy gave the state-
ment, 'I reviewed the statement with Mr. Brant, the
store manager, and Mr. Brant told me that I should
then tell Mr. McGaughy that he was suspended, which
I did.
On Wednesday, July 21, Carey telephoned McGaughy,
When I called him, I said, "Jim, we have made a
decision regarding your suspension, and I have to
inform you that you are being terminated for violation
of company policy regarding union solicitation while
you were working, or while an employee you were
soliciting was working."
Q. (by Mr. Chevalier) What did he say?
A. Nothing, that I can recall. "OK. Goodbye."
4. Brant's testimony
On Friday, January 16, Carey entered Brant's office,
He told me that another employee had complained of
being solicited for union membership . . . the employ-
ee who had been solicited was Bud Johnson, and the
employee who supposedly did the soliciting was Jim
McGaughy . . . late in the evening shift the night
before. . . . Mr. McGaughy started a conversation
with Mr. Johnson, and later shifted the conversation
over to talk of union, and talked to Mr. Johnson about
joining the union, or going to a union dinner.
Somewhere during the course of, that conversation Mr.'
Fothroe had apparently come up to ask about a price,
and then entered into the conversation to some degree.
On the basis. of the statements of Johnson, McGaughy,
and Fothroe, Brant suspended McGaughy and on Wed-
nesday, January 21, decided to terminate McGaughy for
"nonconformity to company policy and violation of the
solicitation rule.
5. Mendez' testimony
In January, McGaughy walked up to Mendez and,
handing him a piece of paper, said, "Here." The paper
read, "You are invited to a dinner," gave the place and
date and was signed with the Union's name. Mendez said,
"Why are you giving me this for?" McGaughy replied,
"You ought to come, you might learn something." Mendez
promptly took the invitation upstairs and gave it to Carey.
When I gave the dinner invitation to Mr. Carey I told
him I got it from Jim, the fellow on the sales floor, and
he asked me if I was going I told him "no" and I gave
him the card..... I regarded Jim's invitation to the
dinner to be a violation of the Company rule.
6. Reconciliation of the testimony of McGaughy,
Johnson, Carey, Brant , and Mendez
Johnson's actions make sense only if I credit McGau-
ghy's testimony that Johnson, by his questions, indicated
an interest in the Union. This, if reported to Cohen by
Fothroe, could jeopardize Johnson's position. Johnson,
motivated by fear, as was Reine, sought to protect himself
by implicating Fothroe and McGaughy. Johnson reported,
untruthfully, that they had created a "disturbance," had a
"fight" and "argument," with McGaughy taking the
prounion side. In the statement taken by Thompson from
Johnson, there was no reference to the antiunion advocacy
of Fothroe. There was injected, possibly at the suggestion
of Thompson, the words, "asked if I was going to join the
union."
Mendez' testimony concerning the dinner invitation is
either imaginary, or the incident took place after McGau-
ghy's discharge. The incident as recited by Mendez was a
clear and flagrant violation of Respondent' s rule , yet Carey
took no action thereon. I conclude and find McGaughy
recalled accurately and testified truthfully to his conversa-
tions with Johnson, Carey, and Thompson.
F. Discharge of Pecorvsky
1. Pecrovsky's employment, union activities, and
Respondent's commission system
Martin W. Pecorvsky was hired by Respondent August
28, 1965, and transferred to Serramonte in July 1968. He
worked as a commission salesman in carpets and other
floor coverings under Department Manager Tom Kearney.
Pecorvsky was one of the Union's first recruits, and one of
the "key" people in its organizing campaign. He attended
all of the union dinners, had lunch with Orcutt in open
restaurants in the Mall at least once each week, and
obtained signatures on union authorization cards.
His guarantee or "draw" through October 8, 1968, was
$2.00 per hour. On October 15, 1968, it was raised to $2.50
per hour, or $100 for a normal 40-hour week. Each week in
which his commissions failed to exceed the "draw," the
amount of deficiency was noted and became a debt owing
to Respondent, which was expected to be repaid out of
future commissions. For example, Pecorvsky's commission
sheets for the period,
Week
Ending Connission Guaranteed Owed to
Date Earned 3/ or Draw Respondent
11/20 / 68 $474 . 18 $100.00 none
11/27 /68 45.41 100.00 $ 54.59
12/4/68 52 .09 80 . 00 82.50
12/11/ 68 35 .53 43 .75 62.81 4/
12/18/68 46 . 81 100 .00 116.00
12/25/68 90 . 72 86 .75 112.03
1/1/69
1/8/69
37.87
268.55
88 .00
101.50 none
163. 60 5/
"Montgomery Ward Procedure" in effect throughout
Pecorvsky's Serramonte employment was:
MINIMUM GUARANTEE
3 His commission was 6 percent, 7 percent, or 8 percent ,, depending on the
type of sale.
4 The clerk preparing the commission sheet erroneously carried over $54.59
instead of $82.50. The correct amount owed to Respondent on December
11, 1968, was $90.72. This error was not discovered by Respondent and
resulted in a windfall of $27.91- to Pecorvsky.
6 Failure of the clerk to pick up an error in the December 25 sheet resulted
in a loss to Pecorvsky of $1.44.
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
An employee is not to be paid less than $1.40 for each
hour worked (Effective February 1, 1968-$1.60 per
hour).
UNEARNED GUARANTEE
REGULAR EMPLOYEES - When the Guarantee
amount in a given payroll week exceeds the commission
and S.U.B. earnings for an employee, a deficit is in-
curred. The store manager is to review all such deficits
each week.
If an employee accumulates a deficit for any four
consecutive weeks, the store manager may cancel the
full amount of the accumulated deficit. If an employee
accumulates a deficit for any six consecutive weeks, the
store manager is required to cancel the full amount of
the accumulated deficit.
When a deficit is cancelled, the store manager is
required to sign the commission sheet to effect the
cancellation and conduct a personal interview with the
employee. This authority may not be delegated. The
purpose of the interview is to review the condition
causing the deficits and determine the correction-
required to avoid repetition.
Should an employee require two consecutive interviews
(or three interviews during a year) he should be
transferred to a non-commission area or terminated.
In store usage, a salesman in a deficit position is said to
be "in the hole," and cancellation of the accumulated
deficit is called a "writeoff."
2. Pecorvsky's testimony
No material finding herein is based on the testimony of
Pecorvsky. He made one written statement before the
election and four written statements after the election.
None contains any reference to the remarks of Freymann,
2 days before the election, described in vivid detail in the
testimony of both Likissas and Pecorvsky. Pecorvsky's
testimony that Spahn sat in the carpet department in
December 1969 and, An the sight and hearing of the
department manager, discussed union business is contra-
dicted by Spahn. Pecorvsky's testimony that he had $54
taken from his paycheck on January 15, 1970, is contradict-
ed by original company records, as is his testimony that he
dug himself. out of the hole,. after a discussion with
Freymann in October 1969.
Finally there is no corroboration for Pecorvsky's
improbable testimony that he passed out 70 to 100 cards in
50 of the stores 100 departments, or his even less probable
testimony on cross-examination, that he gave out 125 to
150 cards openly on company time.
3. Carey's testimony
Every week the operations manager recaps the employ-
ees that haven't earned their draw. Mr. Freymann and
myself and Mr. Brant would discuss the employees that
were on the list, that had not earned a draw, and
between ourselves try to make a decision on what
might happen, or whether they were going to make it or
whether they would not.
Carey reviewed a great quantity of Pecorvsky's commission
sheets and, in a discussion with Freymann and Carey,
We decided that it was apparent that his performance
was unsatisfactory, in that department, and that most
likely he would not be able to make his draw in any
other department.
Q. (by Mr. Berkowitz) Why was that?
A. Basically because of his attitude, his sales
ability.
Questioned further by counsel for Respondent, Brant
testified that transfer as an alternative to termination was
rejected "because of his attitude in general. ... His
attitude was that he didn't seem to be aggressive, as a
commissioned salesman should be, and that he was really
not concerned." Neither Pecorvsky's department manager
nor any other department manager was consulted on his
observation of Pecorvsky's attitude, or on the possibility of
transfer.
On January 21 in Carey's office:
I told him that I was terminating him for failure to
make his draw 'over a prolonged period of time. I told
him that this was the third time he was being written
off, and that we could not continue it any longer. I told
him that his sales were low and not sufficient to make
his draw. He told me, . . . "Mr. Carey, this does not
come as any surprise to me. I had planned to go into
my own business, anyway." ... I told him that our
records would show that he had been terminated for his
failure to make his draw, and he was being terminated
because of unsatisfactory performance.
Carey then prepared for Respondent's permanent records
a record of -"Personnel Office. Interview" on which he
stated:
Has been written off for unearned draw 3 times during
the past year. Work was unsatisfactory-personal sales
were not sufficient. Poor producer-cannot meet
minimum requirements.
Other employees terminated for failure to make their draw
were: Julius Sires, Mary McCulloch, Joseph Brackett,
Oscar Dela Rosa, and Ken Stella.
4. Respondent's records
There were received in evidence Pecorvsky's weekly
commission sheets from September 10, 1968, through
December 31, 1969. (His commission sheets for the weeks
ending January 7, 14, and 21, 1970, were not offered in
evidence.) His total commissions for the calendar year
1969 were $6,857 and his draw for the same period was
$4,682. There were 16 individual weeks in the year when
his commission failed to exceed his draw. He was written
off only once. His earnings for the period which included
the writeoff were:
Week
Ending Commission Guarantee Owed to
Date Earned or Draw Respondent
8/6/69 $147.94 $100.00 None
8/13/69 58.76 55.75 None
8/20/69 30.94 60.50 $ 29.56
8/27/69 22.68 95.25 102.13
9/3/69 121.46 81.00 61.67
9/8/69 121.46 41.00 21.67
9/10/69 78.37 95.50 78.80
9/10/69 78.37 35.50 21.20
9/17/69 51.58 98.00 78.80
9/24/69 92.56 '100.75 8.19
10/1/69 237. 17. 98.00 None
MONTGOMERY WARD & CO. 993
The writeoff shown above as occurring on September 17,
1969, may or may not have been approved by manage-
ment. No written approval appears on the face of the
commission sheet. It may have been merely the bookkeep-
er's method of washing out the obvious errors in the
September reports. It is certain that Brant did not conduct
the interview with Pecorvsky which was required by
Respondent's manual.
Pecorvsky's earnings for the last period for which records
were offered were:
Week
Ending Commission Guarantee Owed to
Date Earned or Draw Respondent
12/3/69 $217.44 $ 80.25 None
12/10/69 70.20 101.00 $33.30
12/17/69 118.27 110.00 15.03
12/24/ 69 Vacation Vacation 15.03
12/31/ 69 Vacation Vacation. 15.03
Cross-examined by Mr. Berkowitz, Brant read into the
record from Pecorvsky's commission sheets of January 14
and January 21, 1970, the fact that he was $106.68 in the
hole for January 14, and $154.54 in the hole on the date of
his discharge.
The termination sheets for the five individuals named by
Carey as having been discharged for failure to make their
draw show, as reasons, in Carey's handwriting:
Julius Sires, discharged 10-29-696 Three writeoffs for
unearned draw '6/4/69 $159.00 8/13/69 $132.00
10/8/69 $176.00 Unsatisfactory performance-Unable
to earn enough to maintain draw.
Mary McCulloch hired 4-9-69, discharged 6-25-69
Personal production not satisfactory. Was never to sell
enough to get out of the red - Was also unsatisfactory
in the handling of paperwork.
Joseph Brackett hired 8-9-68, discharged 3-30-69 Joe
was not able to deal effectively with an outside selling
situation and was constantly not making his draw.
Possibly could have worked out in some other position.
Attitude was OK.
Oscar Dela Rosa hired 7-19-68, discharged 8-3-68 Not
cut out for commission sales. Poor producer. Cannot
close. .
Ken Stella Hired 10-2-68, discharged 1-"9 Terminat-
ed because of unsatisfactory performance. Did not
develop selling ability during time on job.
The weekly commission sheets of B. Benson, received in
evidence show:
Week No. of Write-off
Ending Weeks in Amount of authorized
Date The Hole Write -off by Freymann
3/26/69 6 $ 20.67 yes
5/28/69 4 193.80 yes
9/10/69 7 12.11 yes
6 There were received in evidence, on motion of counsel for Respondent,
commission sheets covering Sires' earnings from August 7. 1968; through
The weekly commission sheets of D. Connor show:
5/21/69 6 $247.39 yes
6/18/69 4 16.36 yes
10/8/69 4 100.69 yes
11/5/69 4 125.05 yes
J
Connor's commission sheet for July 23, 1969, shows that
after being in the hole for 7 weeks with an accumulated
deficit of $182.50, she erased that debt with commissions of
$278.16 against a draw of $88.75 for the week.
5. Brant's testimony
The weekly commission sheets received in evidence in
this proceeding "are the records on which I determined to
discharge Pecorvsky, if they are complete. . . . There are
written instructions beyond which we cannot go." There
are the "Unearned Guarantee" section of the "Montgom-
eryWard Procedure" manual.
Q. (by Mr. Chevalier) How do you interpret that
section?
A. It gives the store the prerogative of writing off
deficit earning and commission salesman four weeks,
or the prerogative of extending that to six weeks.
Q. How do you do that in your store? How do you
decide whether it was four, five or six weeks?
A. Usually you have to take into consideration the
particular season that it might be; promotional events
that might be coming up, and also the amount of
arrears and the four weeks. At the end of four weeks, it
would be rather obvious that the person couldn't sell
his way out of the deficit. Probably write him off at the
end of four weeks, if he had a few dollars in, and
hopefully he would work his way out of it.
Q. Do you sometimes write them off after four
weeks?
A. Yes.
Q. What was your policy after six weeks?
A. The company policy after six weeks is that they
must be written off. They do not exceed six weeks.
Q. Anything regarding the number of periods of
write-off of a salesman?
A. Yes.
Q. What is that?
A. Three-maximum of three write-offs in the 12
months period.
Q. How did you interpret that?
A. That at the end of a 12 month period, or during
a 12 months period, if there was more than three write-
offs, it was necessary to terminate the employee or
move them to a different location.
Employees may be and have, been terminated after one
or two writeoffs.
In the fall of 1969; September, early October, some-
where in there . . . the operating manager called to my
attention that Mr. Pecorvsky was in the write-off
period for the third time that year, and that he needed
December 25, 1968. These bear no relation to the deficit periods preceding
his discharge October 29, 1969.
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
my action and decision on the subject. As we
investigated that particular situation, it was discovered,
belatedly, that Mr. Pecorvsky had had funeral leave
and had been reported to us after the fact, rather than
before or during the period. . . . When we examined
the situation, with the pay benefit of the funeral leave
-that was a question in our mind, whether it was
proper, at that time to take any action, other than the
corrective interview with Mr. Pecorvsky regarding his'
sales, and at that time I directed Mr. Carey to cover the
subject with Mr. Pecorvsky's department manager and
to inform him that his performance had been unsatis-
factory on sales, and that we would expect him to take
action if another write-off was necessary.
Q. Now, the time of this conversation-was this
after the second or his third write-off period?
A. This would have been after his second.
Q. When was Mr. Pecorvsky written off again?
A. He was written off in early January or mid-
January of 1970.
Q. What action did you take then, if any?
A. At that time I directed Mr. Carey ' and Mr.
Freymann, our operating manager, to terminate Mr.
Pecorvsky.
In explanation of his disregard of Respondent's manual
and in contradiction of his prior testimony that this
manual set limits beyond which he could not go, Brant
described the "special circumstances which justified the
retention of Benson and Connor, each of whom had
received three writeoffs within 7-month periods. There was
no consideration of any "special circumstance" which
might have justified the retention of Pecorvsky.
6. Respondent's reasons for the discharge of
Pecorvsky
Respondent has advanced only one specific reason for
the discharge of Pecorvsky, i.e. "Has been written off for
unearned draw three times during the past year" and that
reason is false. Brant testified that "during a twelve month
period, it was necessary to terminate the employee or move
them to a different location." That statement is false. On
the single occasion in the entire period from September 10,
1968, through January 14, 1970, when a deficit of
Pecorvsky was forgiven, mandatory provisions of Respon-
dent's manual were ignored. The store manager did not
sign the commission sheet, and the store manager did not
conduct a personal interview. Freymann's statement to
Brant in September 1969 that Pecorvsky "was in the write-
off period for the third time that year," while literally true,
was without significance. As of January 1, 1969, Pecorvsky
had been in the hole for 6 consecutive weeks, and on
January 7, 1969, repaid his debt to Respondent from
commissions of $268.55. On March 5, 1969, Pecorvsky had
been in the hole for 5 consecutive weeks and on March 12
repaid his debt to Respondent from commissions of
$146.72. The total amount forgiven Pecorvsky on Septem-
ber 17, 1969, was $125.22, and this amount may have been
reduced by paid funeral leave. By way of contrast, Durell
Connor received four writeoffs totalling $489.49 in a 6-
month period, and is still employed. Only one employee,
other than Pecorvsky, has been discharged "for three
writeoffs of unearned draw." His three writeoffs, June 4,
August 13, and October 8, 1969, totaled $467, yet Julius
Sires, despite this was not discharged until October 29,
1969. In contrast thereto, the "third writeoff" of Pecorvsky,
relied on by Brant, resulted in immediate discharge. His
accumulated deficit on January 21, 1970, was only $154.54,
and had been incurred in only 4 working weeks. If Brant
had examined his own records, and had given considera-
tion to the factors of the "particular season" and the
"amount of arrears," he would have seen that Pecorvsky's
deficit of $163.60 accumulated during the last 6 weeks of
1968 had been erased on January 8, 1969, that during the
calendar year 1969 Pecorvsky 's commissions had more
than doubled his draw in 15 weeks, and that there was no
reason for concern.
Brant makes no reference in his testimony to any
conference with Carey and Freymann wherein transfer was
discussed and attitude mentioned. I conclude Carey, in his
testimony, was describing a general practice which was not
followed in the discharge of Pecorvsky. Here again I am
without any light which might be shown by the testimony
of Freymann. The additional reason for Pecorvsky's
discharge, advanced by Brant and advocated by Respon-
dent's counsel, i.e. "unsatisfactory selling performance"
rests on the testimony of Brant that a "big ticket salesman"
such as Pecorvsky is expected to earn twice his draw in
commissions." This testimony is effectively negatived by
the following:
Q. (by Mr. Chevalier) Over a year are employees
expected to earn more total commissions than the total
yearly draw?
A. (by Mr. Carey) Yes, they would be expected to.
Q. Substantially more?
A. Yes.
Q. Twice as much?
A. No. One and a half times as much at least.
From 1964 to 1966, Carey was floor covering manager in
Respondent's Chico and Marysville stores and • spent 70
percent of his time selling carpets. Pecorvsky's commis-
sions in 1969 were 146 1 /2 percent of his draw. Finally
there is no evidence on this record that any percentage test
was considered or applied in connection with the discharge
of any other employee.
I conclude and find that Pecorvsky was not discharged
for any of the reasons stated by Respondent's witnesses,
nor in Respondent's brief to me.
G. Respondent's Rule Restricting Solicitation
For the purpose of this decision I assume, but do not
decide, (1) that the rule is lawful on its face and (2) was not
promulgated for a discriminatory purpose. Neither the
rule, itself, nor its promulgation is attacked by the General
Counsel. Its promulgation on October 9, 1969, antedated
the filing of the Union's petition and therefore cannot
constitute a valid ground for setting aside the results of the
election. The sole question before me is whether the rule
was interpreted, maintained, and enforced "not to promote
legitimate interests of production and order, but to impede
the Union's organization of employees... ." N.L.R.B. v.
Electro Plastic Fabrics, Inc., 381 F.2d 374, 376 (C.A. 4,
1967).
MONTGOMERY WARD & .CO. , 995
From the day the store opened, July 31, 1968, through
March 1, 1971, there were only four violations of the rule
as it was interpreted by Store Manager Brant. In each
instance, he took prompt and effective action. Witham and
Lisha were warned on October 6, 1969, that solicitation of
union membership on company time would result in
discharge. Reports from supervisors on January 15 and 16,
1970, were immediately "investigated" by the plant
security department; the three individuals suspected of
having engaged in solicitation on behalf of the Union were
immediately and ostentatiously suspended and, on January
21, 1970, discharged. Brant testified that he was unaware of
any other violation of the rule. He also testified:
Q. (by Mr. Jellison) Mr. Brant, at Ward's store in
Serramonte, did it ever happen that anyone asked you
to contribute for a personal gift for other employees
being transferred to another location?
A. I am sure they have. I can't recall specific
instances.
Q. (by Mr. Berkowitz) Is this rule always strictly
enforced?
A. Yes sir.
Q. In your view, does it matter if there's pro-union
solicitation or anti-union solicitation?
A. No, sir. If it's solicitation, according to that
statement, it's solicitation.
Q. Well, maybe we better get a definition of
solicitation from you, Mr. Brant.
A. I would consider solicitation if someone came
into the store trying to sign people up for the Union or
the Elks Lodge. I would consider solicitation if the
employees started soliciting all over the store for Mary
Smith's baby, for Mr. Carey's promotion to Corte
Madera, if they were soliciting for a gift all over the
store, people on duty and so on, that would be
solicitation.
Q. If an employee took, say 15 seconds to talk to
another employee about the Union, would that be
sufficient cause to discharge him, in your view?
A. Yes, sir, if it involved direct solicitation:
Q. Would it matter to you. who initiated the
conversation if indeed-
A. No, sir.
Q. -if indeed-
A. Well, excuse me. I probably didn't answer his
question. It would matter whoever initiated the
conversation, would be the guilty party.
Q. Is it your view then, that if an employee
approached another employee and offered him a union
card, and the second employee refused and stood there
for 15 minutes, say, giving the reasons why he would
not join the union, that the second man would not be
guilty of violating the solicitation rule?
A. I would have a difficult time with that decision,
but I think the second employee would not be guilty
unless he was trying to, sign the first employee up in
whatever organization that he wanted to sign him up in.
He was not soliciting. I mean discussing his viewpoint.
Again, this would have to come to my attention before
I would take any action at all. "
Webster's New World Dictionary of the American
Language, College Edition, 1968, contains the following
pertinent definition of the transitive verb "solicit":
1. to ask or seek earnestly or pleadingly; beg; entreat:
as we solicit your support, he solicited them for help.
There can be no doubt that Respondent itself solicited
for the Bay Area crusade, that this solicitation took place
on working time and that to some extent it interfered with
the earning opportunities of the commission salesmen
required to attend meetings. All this solicitation, however,
occurred before the posting of the rule, and may have been
justified by its beneficent purpose. Serv-Air, Inc., 175
NLRB 801.
There is no such justification for the disparate applica-
tion of the rule as between solicitations to attend the
employees' Christmas party and solicitation of union
membership. Department managers at a supervisors'
meeting were directed "get their employees to come to the
party." Supervisors who had been directed to keep their
"eyes and ears open" did not report to Brant or to Carey
the flagrant violations of the text of the rule by Gregor
when he was selling tickets at the invitation of Carey's
secretary. Employees were solicited generally by loud-
speaker to obtain tickets from the personnel office or from
the cashier, and tickets were sold by the cashier, concom-
mitantly with the discharge of her other duties. Carey, in
instructing his committee, did not refer to the rule, did not
forbid solicitation during working hours, but merely stated
that tickets were not to be sold (i.e. pasteboards passed) on
the sales floor, while either the solicitor or the solicited was
working.
On both Brant's and Webster's definition, the Respon-
dent's rule against solicitation on working time was ignored
in connection with the campaign to sell.tickets to the 1969
Christmas party and, by Brant's tacit admission, in the
solicitation of contributions for gifts to departing employ-
ees.
I specifically find that the rule was interpreted and
enforced to impede the Union's organization of employees.
H. Surveillance
From December 1969 through April 17, 1970, Mrs.
Spahn walked through the store four or five times a day "to
let the people know we were still around, still had their
interests at heart, that we hadn't given up." Her only
conversation with employees, other than those necessitated
by the purchases which she made, were inquiries as to
when they were having lunch and arrangements to meet
with them outside the store. Each time she entered the
number "9" was called on the loudspeaker to alert security.
On all of her rounds, she was accompanied either by
Carey, or by Carey's successor, DePape, or by Thompson,
or someone else from security. On one or two occasions,
Carey told her that she was not to disturb people when
they were working 'and that he did not want her to talk
union. In late March 'or early April 1970, DePape joined
her at a buffeteria table, stating: "As long as I am going to
be with you as long as you are in the store, I might as well
eat with you."
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union literature was passed out at the employees'
entrance at the opening and closing hours. Security
personnel was at the door in the morning, and either Brant
or some member of his staff at the door in the evening.
There was nothing unlawful in any of this surveillance.
Before the store opened for business it was necessary that
some person be stationed at the door to make sure that
only employees entered. The presence of Brant or a
member of his staff to bid employees "good night" was a
long-established custom, and an obvious morale builder.
Spahn, although she did purchase cosmetics, apparrel, and
at least one other item was not a normal customer.
Respondent was fully justified in providing her with an
escort to ensure that she did not distract employees from
their selling duties. This surveillance, though lawful, was
thorough and complete and served the collateral function
of identifying to Respondent those employees to whom
Spahn spoke and those who accepted or rejected the union
literature.
1. Interference, Restraint, and Coercion Alleged in
the Complaint
On either January 6 or January 7, 1970, on the selling
floor, during working hours, Department Manager Gerd
W. Zimmerman stated to employee Rosalee Blasingame, "I
heard you signed a union card." When Blasingame
inquired how he knew about it, Zimmerman replied, "I
have my sources." Zimmerman then added that it would
not be to the employees' advantage to have the Union
because they would lose overtime, there would be no extra
days off, and there would be a lot of changes in the way the
department was run.
J. Concluding Findings
Reine, in answer to a "why" question by the General
Counsel, identified Brant as "the union relations manag-
er." This description is most apt. Brant, on first learning of
union activity inside the store, (1) threatened the union
advocates with discharge, (2) instructed his department
managers to keep their eyes and ears open, and (3) posted a
rule specifically forbidding solicitation on working time for
"membership in unions, or fraternal, religious, social, or
political organizations." (The rule did not specifically
forbid solicitation for charitable, compassionate or gam-
bling purposes.)
On January 14, 1970, in a signed letter, Brant stated that
benefits had been conferred by Respondent as a result of
.employee suggestions, promising that further suggestions
could result in more improvements, and concluding with
the reminder:
Remember, I have the power to make improvements.
The Union does not without the Company's agreement
and remember too that it costs you absolutely nothing
to come and discuss problems with me.
An article in "Monty's Words" distributed January 15,
1970, lists the improvements hinted at in Brant's January
14, 1970, letter. In a signed letter distributed to employees
on March 3, 1970, Brant asserts that where the Union has
contracts with Respondent the wage rates are lower than at
Serramonte, with the clinching statement, "The point is, it
doesn't cost Wards more money to have a union-it costs
you.,,
I have no doubt that Brant , in all his actions, attempted
to stay within the law and that he honestly and sincerely
believes that the best interests of his employees would not
be furthered by union representation . In his determination
to prevent the Union from organizing his store, he
neglected ordinary prudence when he ordered the dis-
charge of Pecorvsky. If he had examined Pecorvsky's
records, he would not have permitted the discharge slip to
show the false reason , "has been written off for unearned
draw 3 times during the past year." Neither would he have
included in a signed letter distributed to employees March
3, 1970, the false statement:
During the 52 weeks prior to his discharge, his weekly
earnings failed to exceed the draw in over half of them.
The same lack of prudence was exhibited when Brant
ordered the suspension of Gregor without checking the
truth of Gregor's assertion that he was not in the store on
Wednesday afternoon. When this fact was established to
his satisfaction , belief in the correctness of his actions
caused him to imagine , and ultimately to believe, that
Reine reported to him, on Wednesday, a Tuesday
conversation with Gregor. Similarly, he failed to recognize
that the statement given by Johnson to Thompson was the
product of suggestion and terror and far from the truth.
Dispassionate , impartial investigation of the simple "dis-
cussion of viewpoint ," and would not, on Brant 's defini-
tion, conversation between McGaughy and Johnson would
have revealed that this was a violate the rule.
Finally, Brant was blind to the fact that the loudspeaker
announcement of the Christmas party and the sale of
tickets by the cashier on working time was solicitation of
"membership in ... social organizations" specifically
prohibited by the posted rule, and he was blind to the fact
that Likissas' solicitation of Reine did not differ in any
particular, other than content, from solicitation by the
cashier.
I find that Brant in ordering the suspension of Likissas,
Gregor, and McGaughy, and in ordering the discharge of
Likissas, Gregor, McGaughy, and Pecorvsky was motivat-
ed entirely by the desire to discourage membership in, and
lawfully protected activities on behalf of, the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, as set forth above,
occurring in connection with the operations of Respondent
described above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several
States and have led and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
THE REMEDY
In order to effectuate the policies of the Act, I find it is
necessary that Respondent be ordered to cease and desist
from the unfair labor practices found; to take. certain
affirmative action, including the offering of reinstatement
to four employees, with backpay computed on a quarterly
MONTGOMERY WARD & CO. 997
basis plus interest at 6 percent per annum; and to post
appropriate notices.
Since the discriminatory, discharges found herein go "to
the very heart of the Act,"'N.L.R. B. v. Entwistle Mfg. Co.,
120 F.2d 532, 536 (C.A. 4), and reflect an attitude of
opposition by Respondent to the self-organization of its
employees, the commission of unfair labor practices in the
future is reasonably to be anticipated from Respondent's
past conduct. It is, therefore, necessary that Respondent be
ordered to cease and desist from in any manner infringing
on the rights of employees guaranteed by the Act.
CONCLUSIONS OF LAW.
1. Montgomery Ward & Co., Incorporated, is an
employer within the meaning of Section 2(2) of the Act
engaged in commerce and in a business affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Department Store Employees Union Local 1100,
Retail Clerks International Association, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By coercively interrogating an employee, by threat-
ening an employee with more difficult working conditions
and loss of benefits, and by creating the impression that
Respondent was engaging in surveillance of the union
activities of its employees, Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
4. By discriminating in regard to the hire and tenure of
employment of Frank Gregor, Jerry Likissas, James
McGaughy, and Martin Pecorvsky, thereby discouraging
membership in the Union, Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(3)
of the Act.
5. By thus interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed by Section 7
of the Act, Respondent has engaged in unfair labor
practices within. the meaning of Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce. within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
National Labor Relations Act, I hereby issue the following
recommended:
ORDER?
Respondent, Montgomery Ward & Co., Incorporated, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning union
membership, activities, or sentiments.
(b) Threatening employees with more difficult working
conditions or loss of benefits.
7 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, 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 objections thereto shall be
deemed waived for all purposes.
(c) Creating the impression that Respondent is engaging
in surveillance of the union activities of its employees.
(d) Discouraging membership in or activities on behalf of
Department Store Employees Union Local 1100, Retail
Clerks International Association, AFL-CIO, or any other
labor organization by suspending or by discharging
employees or in any other manner discriminating in regard
to their hire or tenure of employment or any term or
condition of employment.
(e) In any other manner interfering' with, restraining, or
coercing employees in the right to self-organization, to
form labor organizations, to join or assist the above named
Union or. any other labor organization, to bargain
collectively through representatives of their own choosing
and to engage in other concerted activities for the purposes
of collective bargaining or, other mutual aid or protection,
or to refrain from any or all of such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to Frank Gregor, Jerry Likissas, James
McGaughy, and Martin Pecorvsky immediate and full
reinstatement to their former jobs or, if such jobs no longer
exist, to substantially equivalent positions without preju-
dice to their seniority and other rights and privileges and
make them whole for any loss of earnings suffered as a
result of the discrimination against them. Backpay shall be
computed in the manner set forth in F. W. Woolworth
Company, 90 NLRB 289, with interest added thereto in the
manner set forth in Isis Plumbing and Heating Co., 138
NLRB 716.
(b) Notify immediately the above-named individuals, if
presently serving in the.Armed Forces of the United States,
of the right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
(c) Preserve and upon request make available to the
Board or its agents for examination and copying all payroll
records, commission records,. personnel records and
reports, timecards, social security payment records, and all
other records necessary to analyze the amount of backpay
due under the terms of this decision.
(d) Post at its Serramonte store in Daly City, California,
copies of the attached notice marked "Appendix."8 Copies
of said notice on forms provided by the Regional Director
for Region 20, after being duly signed by an authorized
representative of Respondent, shall be posted immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing 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 Regional Director for Region 20, in
writing, within 20 days from the date of the receipt of this
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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Decision , what steps the Respondent has taken to comply
herewith .9
REPORT AND RECOMMENDATION AS TO THE
DISPOSITION OF OBJECTIONS
It having been found that Respondent, after the filing of
the Petition and before the election, (1) suspended and
discharged employees to discourage membership in the
Union, (2) interpreted and enforced a rule against
solicitation to prohibit solicitation on behalf of the Union
while permitting other types of solicitation, (3) coercively
interrogated employees concerning their union activity, (4)
threatened employees with lower wages and less favorable
working conditions, and (5) promised benefits to employ-
ees, all with the intent and the necessary effect of
interfering with the exercise of rights guaranteed by the
Act, it is recommended that the Board sustain the Union's
objections and that the election held April 17, 1970, be set
aside. It is further recommended that the Board remand
Case 20-RC-9094 to the Regional Director for Region 20
to conduct a new election at such time as he deems the
circumstances permit the free choice of a bargaining
representative.
9 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 20, in writing, within 20 days
from the date of this Order, what steps,the 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 National Labor Relations Board having found, after a
trial, that we violated Federal law by discharging employ-
ees for supporting a union, and by otherwise interfering
with our employees' right to join and support a union:
WE WILL OFFER full reinstatement to Frank Gregor,
Jerry Likissas, James Michael McGaughy, and Martin
W. Pecorvsky, and pay them for the earnings they lost
as a result of their January 21, 1970 discharge, plus 6
percent interest.
WE WILL NOT suspend, discharge or discriminate
against any employee for supporting Department Store
Employees Union Local 1100, Retail Clerks Interna-
tional Association, AFL-CIO, or any other union.
WE WILL NOT unlawfully interfere with our employ-
ees' union activities.
MONTGOMERY WARD &
Co., INCORPORATED
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and
This is an official notice and must not be defaced by
anyone. 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, 13050
Federal Building, 450 Golden Gate Avenue, Box 36047,
San Francisco, California 94102, Telephone 556-0335.
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
STATEMENT OF THE CASE
LEO F. LIGHTNER, Trial Examiner: This proceeding was
heard before me in San Francisco, California, on April 26,
1972, pursuant to an Order of Remand issued by the Board
on February 29, 1972. Full opportunity was afforded the
parties to adduce evidence and to examine and cross-
examine the witnesses, within the scope of the remand.
Oral argument was waived. Briefs filed on behalf of
General Counsel, Charging Party, and Respondent have
been carefully considered.
Background
Based on charges, and amended charges, filed by the
Union on various dates between March 20 and November
18, 1970, a complaint was issued on December 10, 1970.
On the, latter date, by order the Regional Director ordered
consolidation, for hearing and determination, of certain
objections filed by the Union to conduct of Respondent
affecting the results of an election held on April 17, 1970.
The complaint alleged, inter alia, that Respondent discrim-
inatorily suspended Frank Gregor, Jerry Likissas, and Jim
McGaughy on January 16, 1970, and discriminatorily
terminated Frank Gregor, Jerry, Likissas, Jim McGaughy,
and Martin W. Pecorvsky on January 21, 1970; that since
on or about November 21, 1969, and continuously to date,
Respondent has published and discriminatorily enforced
an illegal no-solicitation rule; that since on or about
November 21, 1969, and continuously to date, Respondent
has coercively interrogated employees concerning their
union activity, has threatened employees, and has created
the impression of surveillance of employees engaging in
protected concerted activities. These asserted violations
were included in objections, referred to the Trial Examiner
by the Regional Director, in the initial hearing.
In his Decision, issued June 7, 1971, Trial Examiner
George H. O'Brien found the issues in Case 20-CA-5988
to be:
(1) Whether Respondent's no-distribution, no-solicita-
tion rule was discriminatorily applied to prohibit only
prounion solicitation while permitting other types of
solicitation.
(2) Whether Frank Gregor and James McGaughy
engaged in conduct violative of the Respondent's pub-
lished rule.
(3) Whether Respondent's invocation of the rule to
justify the discharges of Frank Gregor, James McGaughy,
and Jerry Likissas was pretextual.
(4) Whether Respondent's assertion that Martin Pecorv-
sky "was terminated because of his unsatisfactory selling
MONTGOMERY WARD & CO. t 999
performance" was a pretext to disguise a discharge for
protected union activities.
(5) Whether remarks made by Department Supervisor
Zimmerman to employee Blasingame, on January 6 or
January 7, 1970, violated Section 8(a)(1) of the Act.
(6) Whether Respondent's motive in discharging Gregor,
Likissas, McGaughy, and Pecorvsky was to discourage
membership in and protected concerted activities on behalf
of the Union.
Trial Examiner O'Brien found: the suspensions of
Gregor, Likissas, and McGaughy on January 16, and the
discharges of Gregor, Likissas, McGaughy, and Pecorvsky
on January 21 to have been discriminatorily. motivated;
that the no-distribution, no-solicitation rule was interpret-
ed and enforced to impede the Union's organization of
employees; and that Respondent had coercively interrogat-
ed employees, threatened employees with more difficult
working conditions or loss of benefits, and. created the
impression that Respondent was engaging in surveillance
of the union activities of its employees.
In its Order of Remand, the Board asserted, inter alia,
the Board, having considered the record, and Respondent's
exceptions, on this issue [whether the Trial Examiner, in
making certain credibility resolutions relating to the
testimony of employees Reine and Gregor, misconstrued
certain pertinent testimony of Reine] agrees with the
Respondent that the Trial Examiner did misconstrue the
record testimony of Reine and that he did rely on
extraneous facts relating to an alleged trip by Reine to visit
his aunt's cabin site. The Board is further of the opinion
that the credibility issues raised by the conflicting
testimony of Gregor and Reine cannot be resolved on the
record before it, and that a further hearing before the Trial
Examiner on the limited issues raised herein which involve
the testimony of Gregor and Reine is necessary.
Subsequently, upon motion, Trial Examiner O'Brien
disqualified himself from further participation in the case.
Upon the entire record, in this proceeding,' including my
observation of the witnesses, I make the following:
FINDINGS OF FACT
including intrinsic and related issues, is considered
seriatim.
Q.
A.
Q.
A.
Q.
held?
Herein , Gregor related that he was seated at a table in
the buffeteria , also described herein as Ward 's Snack Bar,
between 12 noon and 1 p .m. Reine joined him at the table
and inquired whether Gregor was going to the union
dinner : Gregor responded in the affirmative , and told
Reine that Gregor would suggest that he go "because it
would certainly do you some good , and you 're one of the
part-time employees here ." They then had a discussion
relative to a ring which Reine had purchased previously.
The discussion of the ring continued for 5 to 7 minutes.2
Gregor related that he had erred , in his previous testimony,
in asserting that his meeting with Reine was on January 11.
Gregor called attention to his pretrial statement , given to a
Board investigator , on February 10, 1970, in which he
related that his meeting with Reine was "either on January
10 or 11, 1970, between 12 noon and 1 p .m." It is
undisputed that Reine 's timecard reflects that Reine did
work on January 10, from approximately 9:15 a.m ., until
shortly after 3:15 p.m.
Reine acknowledged having met Gregorin the buffeteria,
during which meeting the subject of the conversation
was his . purchase of a ring, however , he placed the time of
the conversation as December 1969. Reine was uncertain
as to precisely when he obtained the ring. He asserted he
had purchased it in October or November, that it had to be
sized, and it was some 4 to 6 weeks later when he received
it.3 Asked if he had a conversation with Gregor on January
10, Reine asserted , "I don ' t think so." Reine then denied
knowing anything about union dinners on January 10.
Reine's recitation relative to when he first learned about
union dinners is garbled , inconsistent , and self-contradic-
tory, and is next set forth.
The following appears, on direct examination:
Q. Did you ever attend a dinner that was spon-
sored or paid for by the Retail Clerks Union?
A. No.
Evidence relative to: the business of the Respondent; the
labor organization involved; the suspensions of Gregor,
Likissas, and McGaughy on January 16; the terminations
of Gregor, Likissas, McGaughy, and Pecorvsky on January
21; the discriminatory application of the no-distribution,
no-solicitation rule; and Respondent's conduct relative to
interrogation, threats, and surveillance; by agreement of all
parties, is not within the scope of the remand, and evidence
relative to the same was not presented.
The evidence relates to two alleged meetings between
Gregor and Reine. Gregor asserts the only such meeting
occurred on January 10 or 11, 1970. Reine asserts the only
such meeting occurred on January 14. The evidence,
' To preclude any misunderstanding, I am considering the testimony
given before me by Gregor and Reine, and have considered the testimony
given by them , in the earlier hearing before Trial Examiner O'Brien, for the
sole purpose of determining consistency or inconsistency, whichever may be
applicable.
2 In the earlier hearing, Gregor related that on the afternoon of January
11, he was in the buffeteria when Reine approached and asked if he were
going to the dinner. Gregor responded that he was, and advised Reine that
The Meeting of January 10-11
During the late '69?
No.
Late '70 period?
No.
Were you aware that such things were being
A. Not until the last time I was in court.
Q. In this trial? .
A. When I was talking to you [Curran ]. I never
knew there was any dinners or banquets.
Q. You never saw any announcement or any
employee invitation to them?
A. No.
it would do him "some good to go because as a salaried employee, he should
come down and find out what is going on." The conversation relative to
Reine's purchase of a ring then ensued.
3 In the first hearing , Reine related that Gregor inquired about his ring,
in a meeting in the coffee shop , which preceded the Christmas party. It
appears, from the undisputed recitation of Gregor, that the Christmas party
was held on December 5.
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
s
On cross-examination:
Q. In your earlier testimony, Mr. Reine, you said
that you weren't aware there were any union dinners
until the unfair labor practice hearing, which was held
last year, [February,'1971 ]. Is that correct?
A. That's correct.
Q. Well, that's not entirely true is it, Mr. Reine?
A. I'm not going to perjure myself, sir.
Q. Well, isn't it a fact, Mr. Reine, that you had
conversations with your department manager about the
union dinners?
A. No.
Q. That's not true. Well, isn't it a fact that you had
discussions with Mr. Carey about union dinners?
A. No.
Q. Didn't you testify in the original hearing that
one of the. reasons you didn't attend union dinners is
because you were afraid; you had received a threat?
A. No.
Q. You're positive of that, aren't you, Mr. Reine?
A. I know for a fact that I never attended any
meetings or any dinners.
Q. Now, that's not what I asked you. I didn't ask
you whether you attended any; I asked whether you
knew about any.
A. I know when we had the last court hearing;
when.I came then, that's when I found out about the
dinners and banquets or whatever you call them.
Q. Right. Well, Mr. Reine, I am going to direct
your attention to page 388 of the transcript of the
original proceedings, on line 6, would you read that?
A. "I never knew about it until I contacted my
supervisor and.Mr. Carey." [Verbatim from the earlier
transcript.]4 And I don't know what the question is.
Q. Why don't you read the question, above,
starting line 3?
A. "I never knew about a union dinner from Mr.
Gregor,".or anyone in particular. [Verbatim from the
earlier transcript only to the name "Gregor".]
Q. Now, that's my question, isn't it? Not anyone in
particular in speaking about attending union dinners in
general: And then you replied that you never knew
about it until you contacted your supervisor and Mr.
Carey. That you never knew they existed?
A. That's correct. When we were talking about the
court hearings last year.
Q. Isn't it true that you testified that your parents
had some friends who worked for Montgomery Ward,
and that they had attended the Union dinners and
talked to you about them?
A. It could be; I don't remember all of it that far
back. Do you know what happened two weeks ago or a
month ago?
TRIAL EXAMINER: Don't argue with counsel; just
answer the questions.
Q. You're quite definite in stating that that was the
first time you ever heard about union dinners, and that
was at the hearing. Now, Mr. Reine, I'm pointing out to
you where you testified in the earlier hearing, in several
instances, where you said that you were aware of union
dinners. And now, I am going to bring them to your
attention.
A. O.K. Let me answer them for you. When I was
talking to Mr. Carey, and writing down my papers,
about the alleged things that happened and the things
that happened here; this is when I found out about the
dinners or banquets. I never knew about them before.
Q. You never talked about union dinners with
anyone in the store?
A. No.
Q. Is that your testimony now?
A. No, I said'that I talked to them, the lawyer and
Mr. Brant and Mr. Carey when we were being briefed
as witnesses for the last trial that we had. That's when I
found out about the meetings or dinners.
Q. Now, Mr. Reine, I am going to ask you again,
aside from your conversations with the attorney from
Montgomery Ward; did you ever discuss union dinners
with anyone else?
A. With my parents afterwards.
Q. After what?
A. After I had talked to the attorneys and the
people at Montgomery Ward's and the people are these
people and Mr. Carey; not Mr. Gregor.
Q. When did you talk to the attorneys from
Montgomery Ward, how long before the trial?
A. I don't exactly remember.
Q. A month?
A. A couple of weeks, maybe, I don't remember.
Q. Now, when did you-I am going to read
something to you and I want you to explain it to me,
Mr. Reine. The question was, "Mr. Carey told you that
there were union dinners," and the answer, "I don't
know if Mr. Carey did, it was the second or third day. I
know my department manager.said they were having
dinners, and I found out. My mother works for Cee's
[sic ]'Candies, and a friend of hers works with her and
her husband or son or relative works in Montgomery
Ward's in the automotive department and she said that
this was right after I reported this to Mr. Carey and Mr.
Brant and so forth; that they were invited to a dinner."
Now, do you recall that?
A. If that's what I said, then that's what I said.
Q. Now, that's not an answer to my question. Do
you recall testifying to that, Mr. Reine?
A. I remember talking to my parents; I mean my
parents talking to me about this person-I don't know
the person's name-and I mentioned that-they knew I
was involved-about the person giving me the applica-
tion. This is when I found out, and that was about the
same time, when I found out from the attorneys and
Mr. Carey.
Q. Now, let me show you another thing, Mr.' Reine.
I am turning the page to page 389, "Who is your
4 However, Reine omitted from the earlier transcript, "I never knew they
existed."
MONTGOMERY WARD & CO. 1001
department manager?" is the question. Answer, "Mr.
Smith, at this time." Question, "What did Mr. Smith
tell you about the union dinners?" Answer, "He just
said, `Well, you know there's been talk that there will
be free dinners, big parties go on.' " Do you recall that
conversation with Mr. Smith?
A. No, I don't. I can't remember that far.
Q. You can't remember that. Can you deny that
that conversation with Mr. Smith took place?
A. I can't deny it if I don't remember it. If I don't
remember it, then I don't. know that it happened.
Q. That's right. Actually, you can't really testify to
a certain date, but the first time you knew about union
dinners is when you attended the hearing, isn't that
correct?
A. I never knew about any union dinners or
meetings until I got involved with an application from
him, and I reported it to my supervisor and talked to
him.
Questions by Charging Party:
Q. Your first discussion about the union dinners
was at a time when your attorneys were still present, is
that correct?
A. I think so, it might have been when I went
upstairs to talk to them, when I wrote that paper, that
statement that he's handling. [Reine's statement to
Respondent, dated January 16, 1970.] This is when I
found out about these dinners or banquets.
Q. And at that time, the company's attorneys were
involved also, is that correct?
A. I think so, I know one of the security men were.
Q. And prior to the first trial, the first time, you
talked to the company attorneys, was approximately
two weeks to a month before the hearing date?
A. I don't remember exactly.
Q. What's your best recollection of how long it was
between the hearing date and the date your attorneys,
you talked to the company attorneys?
A. I don't remember.
Trial Examiner: Just a minute, I am confused. Are
you now testifying-and I am not sure what you're
testifying to, that at the time you gave the statement to
the store officials, which was January 16, 1970, that
that is when you first learned about the dinners, or are
you testifying that it was shortly before the hearing in
this case, which was in 1971, that you first learned
about the dinners?
A. It was between that time and then, sir.
TRIAL EXAMINER: Well , now I thought you testified
5 General Counsel, in his brief, urges that while Reine initially, in this
remand hearing, denied having any conversations with his department
manager, Al Smith, or Carey, about union dinners, as set forth supra, in the
original hearing, Reine did relate conversations with both Carey and Smith
concerning the dinners. The following appears in the earlier transcript:
"Question: What did Mr. Carey tell you about the union dinner? Answer:
He didn't say anything that I recall. My manager and Mr. Carey, they said
there had been dinners, telling about benefits, I would assume. I would just
assume that this is what they were about. Question: Who was your
department manager? Answer: Mr. Smith, at this time. Question: What did
Mr. Smith tell you about the union dinners? Answer: Just said-Well, you
know, there's been talk there will be free dinners, big parties going on."
-earlier, and I am not trying to change your testimony, I
am trying to understand it, that you didn't know
anything about union dinners until approximately, the
time of the hearing, when you were being interviewed
by counsel for the Respondent, for the store , at which
time you were told about the union dinners; I thought
that was your testimony, am I wrong?
A. That's what I said. The officials that were
upstairs and,-
TRIAL EXAMINER: But, this was in 1971, at about the
time of the hearing.
A. Approximately. That time I can't remember.
TRIAL EXAMINER: Not a year before, when you gave
the statement to Mr. Brant?
A. Not until afterwards.
TRIAL EXAMINER: How long afterwards?
A. I don't know exactly.
TRIAL' EXAMINER: Well, approximately, there are 12
months in between.
A. I'm trying to be honest with you, I don't know
exactly, the time.
TRIAL EXAMINER: Well, was it close to the time of
the hearing, or was it close to the time you gave Mr.
Brant the statement in January, 1970?
A. I think it was closer to the time when 'l gave the
statement to Mr. Brant.
TRIAL EXAMINER: How close?
A. I guess that Friday or Saturday. [January 16,
1970 was a Friday.]
TRIAL EXAMINER: You mean the same time you gave
the statement, you found out about the union dinners?
A. That's when I found out about the union
dinners, when I was up there.
TRIAL EXAMINER: Now, maybe I am wrong. I want
to get one thing clear. I thought you testified earlier,
and the record will show what your testimony is, that
you knew nothing about the union dinners until shortly
before you testified in the earlier hearing. Did you so
testify?
A. I think so, I can't remember that far.5
In view of the undisputed fact that Reine did work on
Saturday, January 10, from approximately 9:15 a.m. until
approximately 3:15 p.m.,,in view of the further fact that
Gregor related that his meeting with Reine, in the
buffeteria, could have been on either January 10 or
January 11, I perceive no purpose in treating with the
matter of whether Reine did or did not make a trip to the
Russian River cabin of his aunt on January 11.
Charging Party, in its brief, likewise calls attention to the future tense
used by Reine in describing Smith's advice that "there will be free dinners,
big parties going on."
General Counsel, in his brief, also urges that Reine's denial of knowledge
of the dinners is inconsistent with Reine's assertion that he did not attend
the dinners because he had received a threat . In the remand hearing, Reine
initially denied having so testified in the earlier hearing, then acknowledged
that he had so testified . General Counsel calls attention to the fact that in
the original hearing Reine asserted that he received a threat, by telephone,
in late January or February, "after the election ," when in fact the election
was held on April 17.
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Events of January 14
In effect, Reine related that Gregor solicited his
signature on a union authorization card on the afternoon
of January 14. Gregor not only denies the solicitation, but
denies that he was on the store premises at the time in
question. The testimony of Reine and Gregor, relative to
these events, is next set forth.
Reine related that he reported for work at 1:30 p.m. on
Wednesday, January 14. Reine asserted that Between 1:30
and 2 p.m., while Reine, was standing in the paint
department, near the compressors, Gregor "came to me
across the aisle," and said, "You're a pretty good worker,
Al, let me get you an ap."
On cross-examination, Reine asserted,that Gregor was
passing the refrigerators, which were in the appliance
department, and Reine was dusting the paint compressors
in the paint department, when Gregor said, "Al, you're a
pretty good worker, let me get you an ap for the Union."
Reine described the refrigerators as being 4 to 6 feet away
from the paint compressors. Reine asserted that Gregor
then went in the appliance department, "presumably to a
customer." Reine was uncertain but thought that Gregor
remained in the appliance department until 2:15 or 2:30
p.m., explaining, "I think that a customer came to him, in
the refrigerator department, or he came to a customer."
Later, Reine's attention was directed, by the Trial
Examiner, to the fact that he had given two different
versions of what Gregor had said in this conversation, and
was requested to state precisely what Gregor said.. At that
point, Reine asserted that Gregor had said, "Al, you're a
good worker, let me get you a union ap." Reine then
acknowledged that maybe he had added the word "union,"
asserting, "I honestly don't remember"
It is undisputed that Reine reported his version of the
events of January 14 to Brant, the store manager, on
January 15. On direct examination, relative to his report to
Brant, Reine's testimony was:
Q. Did you tell Mr. Brant that Gregor had given
you an ap?
A. Yes.
Q. Gregor gave you the ap?
A. Yes, I think he did.
Q. Was it Gregor who gave you the ap?
A. Yes, I'm positive.
Earlier, on direct examination, relative to the events of
January 15, Reine related:
Mr. Gregor came to me on the previous day, and he
said that, "You're a pretty good worker, and let me get
you an ap." And I was by the paint compressors and so
forth, and he gave me the ap, and I took it.
Reine then related that he was approached a half hour, or
45 minutes later by Likissas, who, after discussing some
paint, "asked if I had the application completed, and I
believe I said that I would think about it."
On cross-examination, Reine related as follows:
Q. Now, I am curious as to the answer to the
6 In the earlier hearing, Reine asserted that, on January 14, Gregor
approached him, about 2 o'clock, and said, "I hear you work kind of good,
how about an ap?" Reine then asserted that Gregor had said, "I'll get you
an ap." Reine then related that at about 2 o'clock Likissas approached him
and gave him an application. On cross-examination, in the original hearing,
question Mr. Curran asked you just before the break.
Who did give the union authorization card to you?
A. I think that Mr. Likissas gave it to me.
Q. Right, but you testified that you told Mr. Brant
that Mr. Gregor gave you the card. Is that correct?
A. When I was talking, I said that I thought he
gave me the card.
Q. Well, in fact, Mr. Curran asked you about four
times whether it was Mr. Brant-Mr. Gregor or Mr.
Likissas, whether Mr. Likissas gave you the card or Mr.
Gregor gave you the card. Isn't that correct?
A. I can't remember.
Q. Well, that was only five minutes or fifteen
minutes ago, you can't remember that?
A. I'm sorry.6
Gregor credibly related that he was not scheduled to
work on either Wednesday or Thursday, January 14 and
15. Respondent's store has a newspaper, identified as
"Monty's Words." At the time in question, Gregor was the
sports reporter for the newspaper. It is undisputed that'
Wednesday is payday. Gregor credibly related that he went
to the store, on the morning of January 14, obtained his
pay, then proceeded to interview specified department
managers, and other employees, to ascertain if they had
information, in various areas of sports, from which he
could draft sports articles. Among other activities, he
reported to Carey in the snackbar the cost of underwriting
sponsorship of a baseball team. Gregor's home is about a
5-minute drive from the store. Gregor credibly related that
he returned home, at approximatelynoon, to prepare lunch
for his two sons who were in school, and did not return to
the store that afternoon. On the morning of January 15,
Gregor went to the administrative office, on the second
floor, to turn in his sports column and immediately left the
store.?
Respondent, in its brief, seeks to place undue emphasis
on the fact that Gregor, in his pretrial statement of
February 10, 1970, a rejected exhibit, asserted that he
arrived at the store about 10:30 or 11 a.m. It is undisputed
that, in the original hearing, Gregor related that he arrived
at the store on January 14 between 9:45 and 9:50 a.m.
Gregor's recitation, in this hearing, corresponded to his
earlier testimony. Gregor denied having any conversation
with Reine on January 14. Gregor denied ever approaching
Reine and asking him to sign an authorization card, or
advising him that Gregor would arrange to obtain an
authorization card for him. Gregor asserted his only
conversation with Reine relative to the Union was as he
related, in the buffeteria.
Gregor denied ever attempting to organize anyone in the
store or to hand out applications. Gregor related that there
were two occasions when employees, identified as Van de
Water, in the appliance department, and Fazio, inquired of
Gregor as to whether he had union authorization cards. In
both instances, Gregor advised the employees he did not
Reine thought it was the following day , January 15, that Likissas gave him
the union application.
7 1 have compared Gregor's recitation of his activities in the store on
January 14 with his recital in the earlier hearing , and find no substantial
variance.
MONTGOMERY WARD & CO. 1003
have any. Gregor could not recall if he advised either of
them to see Likissas to obtain 'a card.8
Contentions of the Parties and Concluding
Findings
Respondent, in its brief, urges that if Gregor arrived at
the store, on January 14, at about 10:30 or 11 a.m., as set
forth in his pretrial statement of February 10, 1970, and if
Gregor remained in the store for 2 hours and 15 minutes,
he could not have been home in time to meet his children
for lunch, and his presence in the store would extend to
"within a few minutes" of the time Reine.commenced work
at 1:30 p.m.
Gregor acknowledged that he might not have arrived at
the store until 10:30 a.m., explaining that there was no
particular reason for him to modify his arrival time. It is
true that Respondent obtained an admission from Gregor
that he might have been in the store as much as two hours
or two hours and a quarter. However, Gregor also asserted
that he could have been in the store only one and a half
hours. Gregor's assertion that he left the store at approxi-
mately noon, to take care of getting lunch for his two sons,
conforms to his identical testimony in that area in the
earlier hearing. Respondent sought unsuccessfully to
establish that school regulations would have precluded one
or both of Gregor's sons from returning horse for lunch on
January 14. Respondent was not taken by surprise, since
Respondent was on notice by reason of Gregor's recitation
that he returned home about noon in the initial hearing. I
find no merit in Respondent's effort at conjecture.
Reine intimated that, on January 14, Gregor waited on a
customer and remained in the store until 2:15 or 2:30 p.m.
If Gregor's recitation that he had a day off, on January 14,
was inaccurate, Respondent's timecards would so reflect.
Respondent's failure to produce any evidence to vary this
recitation of Gregor, particularly since this recital appears
in the original record, is the basis upon which I find
Gregor's recitation, that he did not work on January 14,
credible. It follows that Reine was inaccurate.
There is not a scintilla of evidence in this record to
challenge the assertion of Gregor that he, at no time,
possessed union authorization cards, distributed any to any
employee, or solicited any employee to sign, an application
card, with the single possible exception of the recitation of
Reine.
Reine's recitation of Gregor's purported statement to
him, runs the gamut from, "You are a good worker, I'll get
you an ap," a clearly ambiguous statement, if, as Reine
contends, he had never previously discussed the Union
with Gregor, to, "I'll get you a union ap," with Reine
8 In the initial hearing, at variance, Gregor related that he advised Fazio,
in the vacuum cleaner department, and Van de Water, upon their separate
requests to see Likissas to obtain the cards. Gregor then admitted advising
Van de Water that Gregor would advise Likissas of the request of Van de
Water.
9 In its brief, Respondent makes no reference to any of the testimony of
Reine . Perhaps this is in part explained by Respondent counsel's
observation, on the record, that Reine's testimony " is starting to get
inconsistent with his earlier testimony."
In its brief, Respondent asserts "the experience of counsel for
Respondent is that remands only serve to correct the General Counsel or
the Trial Examiner's procedural irregularities and thereby insure that their
earlier conclusions will not be upset upon review by the courts. It would be
acknowledging he may have added the word, "union," and,
"I'll get you an ap for the Union," an obvious effort to
eliminate the ambiguity. Reine was self-contradictory in
asserting in the initial hearing that he received the union
authorization card initially from Likissas, while, in this
hearing, Reine asserted that' he was "positive" that it was
Gregor who provided him with the union authorization
card, at the same time that Gregor approached him.9
Reine in the initial hearing , and upon correction in this
hearing, asserted that he was given the union authorization
card by Likissas. However, herein having testified that it
was Gregor who provided him with the union authoriza-
tion card, Reine asserted that, when Likissas first ap-
proached him, Likissas "asked if I had the application
completed, and I believe I said that I would think about
it." This is an impossibility if, in fact , Gregor had not
previously provided Reine with a union authorization card,
a fact which Reine later admitted.
Accordingly, based on the recitation of Gregor, whom I
credit, I find that Gregor was not in the store on the
afternoon of January 14, did not have the alleged
conversation with Reine, which Reine related, at any time,
and that, in fact, Gregor did not undertake to obtain a
union authorization card for Reine , and did not supply one
to him.
There is left for resolution the question of whether the
meeting, related by Gregor, occurred on January 10. The
briefs of General Counsel and Charging Party treat at
length with the effort of Reine to deny knowledge of union
dinners, at any time prior to approximately January 1971, a
year after the principal events herein , immediately prior to
the initial hearing. To prevent any misconception of the
extent to which Reine sought to maintain that he had no
knowledge of the union dinners prior to January 1971,
after having so asserted in this hearing, I have set forth his
recitation at greater length than would be normally
desirable. The ring of truth appears in the recitation of
Reine, in the initial hearing, in the following:
Q. What did Mr. Smith tell you about the union
dinners?
A. Just said-well, you know, there 's been talk
there will be free dinners, big parties going on.
Gregor related that the second such union dinner was
held on January 11. It was for this reason that Gregor
mistakenly related, in the earlier hearing, that his meeting
with Reine was on January 11, rather than January 10.
This record is silent as to whether any union dinners were
held after January 11.10
Reine corroborated the recitation of Gregor that they did
discuss a ring Reine had purchased, at a meeting in the
a rare day, indeed , that an earlier conclusion was reversed on the basis of
evidence introduced in the remanded hearing , particularly when the earlier
conclusions were colored by such intemperate , unjudicial , unfair characteri-
zations of testimony as was done here ." I trust , and hope, that given time for
sober reflection, a member of the bar, whose duties, as well as oath,
encompass aiding in the administration of justice, through judicial hearings,
will avoid repetition of such unprofessional and undignified observations. I
find the assertion unworthy of rejoinder.
10 Smith, paint department manager , appeared as a witness in the initial
hearing, immediately after Reine , but was not questioned relative to any
conversation he may have had with Reine concerning union dinners. Smith
did not appear as a witness in the instant hearing.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
buffeteria, but would place the time of meeting as
December. Accordingly, on the basis of demeanor, and
having found that the recitation of Reine is inconsistent
and self-contradictory, as outlined supra, and that the
recitation of Gregor was consistent with his earlier recital, I
am, for the reasons set forth, constrained to find that
Gregor did have a discussion with Reine in the buffeteria
on January 10 to the extent related by Gregor.
Charging Party, in its brief, urges that I should find that
Gregor did not violate Respondent's no-solicitation rule;
that Respondent unlawfully interrogated Reine; and that
Respondent unlawfully discharged Gregor. The evidence
essential as a predicate for such findings and the issues
stated are not within the scope of the Remand.
Respondent urges in its brief that the evidence is clear
that Gregor did solicit Reine on January 14 and thus was
not engaged in protected concerted activities. I have found,
from the credible evidence, to the contrary.
General Counsel, in his brief, urges that I limit my
findings to findings of fact consistent with the credibility
resolutions which I have made, and that the Board draw
conclusions of law from such resolutions coupled with the
evidence adduced at the earlier hearing.
I have found that Gregor did not solicit Reine on
January 14. The report of this alleged event made by Reine
to Respondent, Respondent's subsequent action thereon,
Respondent's no-solicitation rule, and Respondent's moti-
vation for the discharge of Gregor are not within the scope
of the remand; they are matters which relate to evidence
presented in the earlier hearing, as distinguished from the
evidence presented before me. Accordingly, my recom-
mendations must be so limited.
Recommendations
Having found, as a fact, that Gregor did not solicit Reine
on January 14, I recommend that the Board draw from
such finding, coupled with the credible evidence adduced
at the earlier hearing, such conclusions of law as are
appropriate in arriving at its Decision and Order.']
11 The procedural rights of the parties to file exceptions, the Board's hereafter, are set forth in fn. 7, 8, and 9 in the original Trial Examiner's
Rules and Regulations relative thereto, and the rights of the parties Decision, and are incorporated herein by reference.