Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

Mar 7, 1972

195 N.L.R.B. 725 (N.L.R.B. 1972)

MONTGOMERY WARD & CO., INC.
Montgomery Ward & Co., Incorporated and Olin
Wagoner . Case 3-CA-4339
March 7, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On October 13, 1971, Trial Examiner Sidney D.
Goldberg issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed a brief in
support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and adopt his recom-
mended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that Respondent,
Montgomery Ward & Co., Incorporated, its officers,
agents, successors, and assigns, shall take the action set
forth in the Trial Examiner's recommended Order.
' Respondent urges that the Board 's Decision in Collyer Insulated Wire,
A Gulf and Western Systems Co., 192 NLRB No. 150, requires a reversal
of the Trial Examiner's Decision. We do not perceive the relevance of
Collyer to the facts of this case. The issue here is not whether the Board
should require the parties to utilize available grievance and arbitration
procedures, as it was in Collyer. To the extent that any arbitration issue is
properly before us in this case at all (Respondent did not clearly affirma-
tively plead a deferral-to-arbitration defense in its answer), it is a question
of whether the decision which was made here by the Joint Grievance Com-
mittee should be deferred to pursuant to our Spielberg rule. Like the Trial
Examiner, we are not satisfied that the statutory issue of discriminatory
discharge had been either raised or resolved in the arbitration proceeding.
Airco Industrial Gases, 195 NLRB No. 120. However, we do not adopt the
Trial Examiner's finding that the award by the Joint Grievance Committee
presupposes that any of the company representatives thereon believed that
Wagoner had not falsified company records, which was the issue litigated
before the committee.
TRIAL EXAMINER'S DECISION
SIDNEY D. GOLDBERG, Trial Examiner; This case was
tried before me at Albany, New York, on June 9 and 10, 1971.
The complaint,' issued pursuant to Section 10(b) of the Na-
tional Labor Relations Act, as amended (the Act), alleges
that Montgomery Ward & Co., Incorporated (the company),
discharged Olin Wagoner, a technician in its appliance ser-
vice unit at Menands, New York, because he engaged in
concerted activities. The company answered, denying that its
' Issued March 22, 1971, on a charge filed January 4, 1971.
195 NLRB No. 136
725
discharge of Wagoner was for concerted activities and stating
that, pursuant to the grievance procedure in its collective-
bargaining contract with Warehouse, Retail and Mail Order
Employees, Local 7942 (the union), the company had offered
to reinstate him but that he had refused.
The issues so raised came on for trial before me as set forth
above. All parties were represented; were afforded an oppor-
tunity to adduce evidence, cross-examine witnesses, and to
argue on the facts and law. Briefs filed by the General Coun-
sel and by counsel for the company have been considered.
For the reasons hereinafter set forth in detail, I find that
the real reason for the company's discharge of Olin Wagoner
was his participation in concerted activities affecting condi-
tions of employment and that its assigned reason was a pre-
text.
Upon the entire record herein,' as well as the demeanor of
the witnesses, I make the following:
FINDINGS OF FACT
1. The parties
The company is a national organization over which the
Board has exercised its jurisdiction innumerable times. The
union represents certain of the company's employees, includ-
ing those in the service unit at Menands, and is a labor
organization within the meaning of the Act.
2. Summary of events
Olin Wagoner was a "road technician" for the company.
His job was to repair the appliances it sold, usually washing
machines and dryers, in the homes of its customers in the
Albany, New York, area. He worked out of the service build-
ing in Menands, immediately north of Albany.
In early March 19701 most of the road technicians in the
Menands unit met in the employee lunchroom to discuss
what they considered inadequacies in their working condi-
tions. Wagoner was one of the three men most vocal at the
meeting and, during a part of it, a company supervisor was
in the room. One week later, James Gray, the central service
manager for the area, called all technical employees of the
unit into a meeting. After completing some preliminaries and
excusing the shop employees, Gray told the road technicians
that there were three "agitators" among them; that he knew
who they were, and that he intended to discharge them-one
in June, one in July, and one in August. Gray conceded in this
testimony that one of those he had in mind was Wagoner.
Although shortly thereafter Gray gave him a salary increase,
Wagoner's performance ratings, which had theretofore been
fairly good, became unsatisfactory. In July, Wagoner was
discharged for having too many extra parts, used and unused,
in his truck but the next day, through the intercession of a
representative of the union, Wagoner was reinstated-on pro-
bation.
On Friday, August 7, Wagoner completed his last call at
5 p.m. at the home of a customer in Copake, New York, about
50 miles from Albany. It required about an hour and a half
for him to drive back to the plant. He arrived there about 6:30
p.m., parked and locked his truck in the proper area, and left
for the weekend. On Monday morning he wrote on his time-
card, as his quitting time on Friday, 7 p.m.
' Affiliated with Teamsters, Chauffeurs, Warehousemen and Helpers of
America.
' Typographical errors in the transcript of proceedings have been cor-
rected by order dated September 23, 1971.
All dates not otherwise designated are 1970.
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gray, who had seen Wagoner entering the parking lot
Friday evening, checked the timecard on Monday and circled
the 7 o'clock quitting time Wagoner had written in. He then
looked at Wagoner's "route sheet", i.e., itinerary, for Friday
and turned the matter over to the internal security depart-
ment for investigation. A few days later, Wagoner was dis-
charged.
Wagoner filed a grievance over his discharge and, in Febru-
ary 1971, a committee consisting of two representatives of the
union and two representatives of the company recommended
that Wagoner be reinstated, but without backpay and on
condition that he withdraw the charge which he had filed
with the Board. Wagoner refused and this Board case pro-
ceeded.
3. The issues
The General Counsel contends that Wagoner was dis-
charged as a result of his effort, together with some of his
fellow road technicians, to improve their working conditions
and that his entries on his route sheet and timecard were
justified by custom and practice.
The company contends that Wagoner's discharge was
based solely upon his falsification of records in an attempt to
obtain pay for time not worked.
4. Discussion and conclusions
a. Preliminary
At the trial respondent assigned as its reason for the dis-
charge of Wagoner his falsification of company records. Ac-
cordingly, an adequate discussion of the issues in this case
requires u description of the data and records involved and,
in some respects, findings concerning them.
The basic employee record is, as usual, the timecard. Each
morning the road technician reports to the service building
to receive his assignment of service calls to be made that day
and to obtain the parts and materials necessary for the day's
work. On entering the building, he will "punch in" in the
customary fashion: the clocking apparatus stamping the day
of the week and the time of days If the employee completes
his day's work and returns to the service building before it
closes about 6 p.m., he will also "punch out" on the clock.
If, however, as often happens, the employee completes his
calls at a place so far away that he cannot reach the service
building before it closes, he will return there nevertheless and
park and secure his truck before leaving for the day. On the
following work day, when he clocks in, the employee will
write his quitting time for the previous day on his timecard
and will initial it. This handwritten checkout time is required
to be initialed also by the employee's supervisor.
The other record required to be kept by the service techni-
cians is the "daily route sheet", his record of the day's work.
One of these sheets, printed with lines, columns, and other
spaces for insertion of particular data, is given to each of the
men the first thing in the morning. On it when he receives it
are typed only the names, addresses, and telephone numbers
of the customers whose appliances are to be serviced that day
and an indication of the type of appliance to be serviced The
men are required to keep in touch, by telephone, with the
service department so that additional service calls may be
assigned to them during the day.
With respect to each customer, the road technician is re-
quired to make entries in appropriate columns to show, re-
spectively, the mileage to the residence of the customer, the
amount of time required to reach the location, the time of day
when the work was commenced, the time of day when it was
completed, and the total time devoted to the call. These en-
tries are all made in hours and tenths of hours. Other entries
in columns on the same line as the name of the customer
provide the store with billing and other information.
At the bottom of the route sheet there are printed boxes
with spaces for entries of "time off route", i.e., nonworking
time, and for the speedometer readings on the truck at the
beginning and end of each day. There is also a printed box
for a summary of the employee's time entries: viz, when he
timed in, when he left the building to begin making his calls,
when he finally timed out, and the total and net hours
worked.'
In connection with the entries required to be made on these
records by the employees, this case requires particular consid-
eration of the regulations of the company concerning the rest
periods and eating time allowances, as well as the manner in
which they were to be entered on the route sheets. The collec-
tive-bargaining contract provides for morning and afternoon
breaks and, in the box on the route sheet labeled "time off
route", spaces are provided for entry of these breaks and for
lunch. There is no dispute that the morning and afternoon
breaks were 15 minutes each and that they were paid time;
there is also no dispute that the lunch period was one-half
hour and that it was not paid time. Moreover, all seven of the
road technicians who were witnesses in this case testified that
they had been trained, for the sake of simplicity, to put down
the time of their breaks immediately preceding or following
a call rather than at the actual time of taking it, since the
actual break time might occur during travel from one call to
another and meticulous entries of the times of these breaks
would unnecessarily increase the number of entries. James
Gray, the company service manager, did not dispute this
testimony and I find that this method of entering breaks was
the accepted procedure.
One of the major issues in this case concerns the details of
a second afternoon break, sometimes called a "supper" break,
allowed the road technicians when their work continued after
the normal quitting time. The questions that need to be an-
swered concerning this break are (a) whether it is paid or
unpaid, (b) when the employee becomes entitled to take it, (c)
its length, and (d) how it should be reported.
The existence of the late break is indisputable because the
collective-bargaining contract provides as follows-
Section 7.2. When an employee works eleven (11) or
more hours in one day he shall receive an additional rest
period.
The question next to be resolved is whether this break, if
taken, was paid or unpaid time. David Opitz, one of the other
road technicians, testified that, on the occasions when he
worked late and took a supper break, the only deduction he
made from the total hours on his route sheet was the half
hour lunch period and that he was paid in accordance with
his entries. The other road technicians who testified on this
matter appear to have assumed that the late break, when
appropriately taken, was a paid break and the reference to it
as a "second afternoon break" by Italo Piccolo, the immedi-
ate supervisor of the road technicians at Menands, indicates
that he also regarded it as paid time. Gray, however, testified
that the late break was not paid time and that any employee
' The timeclock involved in this case records time on the basis of 24
hours, i e, 4 p in appears as 16 00, and the hours are divided into hun-
dredths instead of minutes, e g , 4 45 p in appears as 16.75
' Most of the route sheets show changes, in handwriting different from
that of the technician, usually reducing the hours of compensated work, but
the record does not show who made the changes or their significance
MONTGOMERY WARD & CO., INC. 727
whose timecard showed that he worked after 7 p.m. would
automatically have an hour deducted: 30 minutes for lunch
and 30 minutes for supper. As shown below, any effort to
determine, from the route sheets and related timecards in
evidence, what was the company's actual method of opera-
tion prior to Wagoner's discharge is impossible.
The only timecards in evidence are those of Opitz for the
weeks ending October 7 and 14 and that of Wagoner for the
week ending the day before he was discharged. Wagoner did
not work after 6 p.m. during that week except on August 7,
the day involved in this case. Analysis of the entries on Opitz'
timecards for the 11 work days on them shows that, on the
five occasions he worked until 9:15 p.m. or later, approxi-
mately an hour was deducted from the total time elapsed
between his checking in and checking out; on the 3 days when
he quit between 5 p.m. and 5:15 p.m., slightly more than half
an hour was deducted; and, on the day he quit at 7:30 p.m.,
42 minutes was deducted. Oii one of the 2 remaining days he
worked from 8:30 a.m. until 2:45 p.m. and on the other from
8:30 a.m. until 11 a.m.; on neither of these days was there any
deduction.
These figures are in conformity with Gray's testimony, but
it is to be noted that the period represented by these timecards
is long after Wagoner's discharge and also after there had
been, in September, the first step hearing on the grievance
Wagoner had filed over his discharge. Accordingly, the me-
chanics of the supper break procedure presented by Wago-
ner's case must have been very much in Gray's mind at the
time. Gray was manager of the unit and the fact that Opitz'
time records in evidence were then carefully kept in accord-
ance with Gray's view of how they should be kept does not
make any substantial contribution to the resolution of this
issue or to Gray's general credibility as a witness.
The late break is expressly provided by the contract and
appears immediately following the provision for the admit-
tedly paid a.m. and p.m. breaks. The lunch break, however,
which is admittedly an unpaid one, is not mentioned in the
contract at all. The reasonable implication of the contract,
therefore, is that the late break is paid time. The testimony
of all the technicians, and of Piccolo, indicates that that was
how they regarded it. Accordingly, whatever was the com-
pany's actual practice following Wagoner's discharge, I find
that, at the time prior thereto, the men believed that it was
paid time.
The third question concerning the late break is when the
men believed that taking it was justified. It must be recog-
nized, at the outset, that the quoted section of the collective-
bargaining contract, in effect since February 27, 1969, pro-
vides for the late break "when an employee works eleven (11)
or more hours in one day". This provision, however, is less
than absolutely clear: it does not state whether the 11 hours
must be hours actually worked or whether the two paid
breaks and the unpaid lunch period, or any of them, are parts
of the eleven. Some of the technician witnesses, and Gray
himself, referred to 7 p.m. as the time that must be reached
before the late break could be taken and, since the evidence
shows that most clock-in times were about 8 a.m , it is a fair
inference that the contract provision contemplated the pas-
sage of 11 clock hours from the commencement of the work-
ing day. Moreover, ^ as set forth below, some of the men be-
lieved that they were entitled to a late break whenever they
went into overtime, i.e. after 5 p.m.
b. The concerted activity
Turning now to the evidence of the events which the Gen-
eral Counsel contends led to Wagoner's discharge, there is no
serious dispute that, in early March, the road technicians met
at a diner near the service building and discussed their desire
for wage increases' and other improvements in their working
conditions. As a result of this discussion, David Opitz, the
union steward for the road technicians, went to the office of
James Gray, the service manager. Sam Burgio, the company's
metropolitan regional manager and O'Grady, a union official,
were there at the time. Opitz said that the road technicians
wanted to have a meeting and that he wanted it to be held on
company premises, "not behind anybody's back". Burgio
asked what the meeting would be about and Opitz said the
men would write up a list of "demands". Burgio answered
that he would not accept any "demands" but would look at
the men's "requests". O'Grady said that that was the proper
way to do things.
The company officials gave their permission, and a notice
that a meeting would be held the following morning was
posted on the bulletin board. The next morning the road
technicians met in a room which Gray called the "training
room" and which some of the employees referred to as "the
cafeteria". This room was, the parties agreed, approximately
30 feet square and contained some coffeemaking apparatus
used by the office and managerial staff. -
As union steward, Opitz presided and practically all of the
six or seven road technicians were present. Wagoner, Daniel
Sullivan, Michael Walsh and Opitz were the most outspoken.
While Wagoner was speaking about their need for better
wages, sick leave, and hospitalization, Keith Acker, the act-
ing parts manager, came into the room for a cup of coffee and
remained there for about 5 minutes, during all of which time
Wagoner held the floor.
At the end of the meeting, Opitz prepared a list of requests
to be submitted to management and announced, for reasons
not clear on this record, that he was resigning as union stew-
ard.
c. The March meeting
About a week after the meeting of the road technicians,
Service Manager Gray called a meeting of the service em-
ployees, both shop and road technicians, in the cafeteria.
After some brief cake cutting ceremonies to honor Bingham,
one of the road technicians who had completed 10 years of
service, Gray dismissed the shop employees but kept the road
technicians in the room.
According to Gray's own testimony, as well as that of all
the road technicians who testified, Gray said that there were
three "agitators" in the group who were, among other things,
"creating dissatisfaction": that he was going to fire them-
one in June, one in July, and one in August.' Gray conceded
that, although at that time he did not name-those he meant,
Wagoner was one of them. Gray also told the men that when
he made a statement he always stuck to it.
There is also no dispute that Gray referred to the road
technicians' custom of meeting in a diner near the service
building. He said he favored their meeting to talk over their
problems and t6 exchange information concerning the techni-
cal difficulties they encountered in their work. He also said
' The collective-bargaining contract does not set wage rates for the road
technicians
' Gray, in his testimony, added that it was his intention to fire them "if
things didn't shape up" No other witness appears to have heard these words
at the meeting and I find that they were not in Gray's statement when he
made it
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that, while he, himself, had "pros and cons about manage-
ment", he never teed to "offset" management. He followed
this by saying that the diner was a good place to solve prob-
lems, but he didn't want to catch any of the three "agitators"
in the diner or he would have them fired "for misuse of
Company vehicles". Several of the road technicians also tes-
tified that Gray said that, if anything was done to counteract
these intended firings, he would close down the unit and farm
out the work. Gray, who testified after these men, did not
contradict their testimony.'
d. Wagoner's performance reports
Wagoner had been employed by the Company as a road
technician for 5 years prior to his discharge There is no
reliable evidence in this record of any disparagement of his
work, honesty, or conduct prior to his participation in efforts
to improve the conditions of employment of the road techni-
cians.
Italo Piccolo, the supervising field manager in the Menands
service center and the immediate supervisor of the road tech-
nicians, testified that each man was give a performance re-
view every 6 months and that these reviews were shown to
and discussed with the individual employees. In addition to
these performance reviews, he testified, at the beginning of
each month he checked over the technicians' daily route
sheets for the previous month and prepared a "monthly'per-
formance rating sheet" on the basis of five specific areas of
performance. Piccolo's rating of Wagoner for the month of
March 1970 gives him perfect ratings and "very good" com-
ments with respect to "customer relations" (15 points);
"cooperation-dependability" (10 points); and "accuracy" (10
points). In the area labeled "recovery", Wagoner was given
next-to-top rating with 30 out of a possible 40 points and the
comment (not there explained) "sell service contracts". Fi-
nally, in the area labeled "output", he was given just-below-
middle rating of 10 out of a possible 25 points, showing an
output of 4.0 to 4.99 and the comment (also unexplained) "at
least-6 completes". Wagoner's total on this rating was 75 out
of a possible 100 points and a composite rating of "4 plus"
out of a 5 maximum. Piccolo testified that 4 plus is "just on
the border of going to 5", the top rating Moreover, Wagoner
testified that at the beginning of April he told Gray that he
had heard from other employees that Gray had said he, Wag-
oner, was completing more calls than any other technician
and that, if that was so, he should be paid top rate Gray
confirmed this and testified that, after looking at Wagoner's
performance sheet, he said that Wagoner did not sell con-
tracts and that he did not complete the required number of
calls." When Wagoner answered that he was given the
tougher calls and assigned to cleaning up "other peoples'
garbage", Gray said that he would give him the "top rate"
and challenged him to prove that he'was as good, if not better,
than the other employees. Gray testified that he then made
out a wage increase card to give Wagoner the highest rate,
effective immediately
This monthly performance rating and Gray's favorable
reaction to Wagoner's request for top pay are the only objec-
tive indications of the character of Wagoner's work at or
about the time of his participation in the road technician's
meeting. The company was unable to produce any of the
monthly performance ratings reasonably prior to this one for
9 Although under these circumstances there can be no doubt that Gray
made this threat, it occurred more than 6 months prior to the filing of the
charge and is not alleged as a violation of the Act
10 These comments clearly indicate that Gray was looking at the monthly
performance evaluation sheet summarized above and his remarks appear to
explain the comments on it
March 1970" nor was it able to produce any of the "Perform-
ance Review"sheets prior to the one for May 1970 discussed
below. Piccolo conceded, however, that Wagoner's rating had
never dropped below 4 and, although he first testified that he
had spoken to Wagoner "many times" about his shortcom-
ings, he later conceded that he had never done so prior to late
March or early April."
On May 8, Piccolo brought Wagoner into his office to
discuss the "Performance Review" of his work for that date.
Three items: "understanding of present job and necessary
related work", "familiarizing and encouraging customers to
use crediting buying", and "accuracy in handling cash", were
marked "satisfactory", but on all the other elements he was
graded as "less than satisfactory".The detailed "suggestions
for improvement" on the performance rating sheet consisted
of a list of Wagoner's alleged shortcomings, including "im-
proper diagnosis of service problems", "cust. complaints on
over-charges", and failing to return new and used parts. Wag-
oner disagreed with the rating of "unsatisfactory" given to
him and refused to sign the sheet. As a result of this rating,
Wagoner was put on probation and the date of his'next review
was set for June 8, 1970
There is no evidence of a performance review of Wagoner's
work in June, as scheduled in the May 8 rating, and the next
one is dated July 7. This time none of the items received a
satisfactory rating. the "suggestions for improvement" repeat
some of the previous criticisms but emphasis this time was
laid on the condition of his truck and his handling of new and
used parts. The comments end with the statement that his
service is terminated "as of 7/7/70" but the word "ter-
minated" is crossed out and the word "probation" written
under it." The date of next review is marked "indefinite" and
there is again a notation that Wagoner refused to sign.
e. The July discharge of Wagoner
Field Manager Piccolo testified that on July 7, 1970, while
Wagoner was on vacation, he and Acker, the acting parts
manager, inspected the company truck used by Wagoner in
his work. They were looking for new parts which had been
ordered for repairs on customers' appliances. He testified that
in Wagoner's truck they found the new parts mixed in with
old parts removed in the course of repairs and which should
have been turned back to the parts department so that claims
for refunds could be made from the company's suppliers for
parts still in warranty. The following day, Piccolo testified,
when Wagoner came back from his vacation, he "ter-
minated" Wagoner's service with the company. Asked for his
reasons for this action Piccolo, on the stand, read them from
the Performance Review sheet dated July 7.
" Another monthly performance sheet, for November 1967, shows a
total of 70 points out of a possible 100 and a rating of 4 The report also
indicates the same lack of "promotional" work for the company that appears
in the March 1970 sheet and a similar slightly low output, but otherwise very
good performance
is Gray's testimony, that Piccolo began complaining about Wagoner in
August 1969 and kept complaining about him until he was discharged, is
inconsistent with the only reliable documentary evidence in the record
dealing with that period, the March 1970 monthly performance rating sheet,
which was prepared by Piccolo. Other testimony by Gray, that Wagoner
consistently made errors in completing his route sheets but that this fact was
not discovered until after Wagoner's discharge, is in hopeless conflict with
his and Piccolo's testimony that monthly performance ratings are prepared
each month on the basis of an examination of the completed route sheets
and is rejected These statements may be, to company counsel, mere hyper-
bole, but to me they are indicia of Gray's disregard for truth in pursuit of
his objective-to brand Wagoner as a generally incompetent employee,
looking toward this rating, or some other incident, to justify his discharge
" The incident set forth immediately below is the probable explanation
for this change and for this entire rating sheet
MONTGOMERY WARD & CO., INC.
According to Wagoner's testimony, however, Gray called
him into the office and questioned him about the parts in his
truck. Wagoner explained that they were all useless parts
taken from machines under repair which the men were accus-
tomed to keeping with them so that they could remove small
parts and sections, such as clamps and bolts, for use in mak-
ing other repairs. He testified that he was familiar with the
need to turn in parts still in warranty but that the material
he had in his truck was not of that type and that, if he turned
this material in, the parts clerks would discard it at once in
his presence. He testified that Gray then told him he was
going to discharge him because of the parts kept in the truck.
Gray testified that on July 7 Piccolo came to him, told him
that Wagoner "would not cooperate", that his truck was in
"deplorable" condition, that he had changed his vacation
plans after the schedule had been approved, that he had
refused calls "and so forth", and that he should be dis-
charged. Gray testified that he instructed Piccolo to proceed
at his own discretion and that Piccolo discharged Wagoner.
Upon being discharged, Wagoner went to the union office
and a representative, O'Grady, returned to the service center
with him. O'Grady spoke with Gray and Gray, according to
his own testimony, referred O'Grady to Piccolo, saying that
it was Piccolo who had determined to discharge Wagoner and
it was only Piccolo who could change the situation. After
O'Grady talked with Piccolo and again with Gray, it was
decided to reinstate Wagoner on probation and O'Grady
Told Wagoner to return to work and, according to Wagoner's
testimony, to "be careful"."
Opitz and Sullivan both testified concerning company
policy on the disposition of parts removed during repairs.
They agreed with company policy, and with Wagoner, in
recognizing the need to return parts still in warranty and they
agreed with Wagoner that their understanding of current
policy did not require that other, useless, parts be turned in.
They also testified that they kept removed parts in their
trucks to obtain clamps and bolts for use in making repairs.
Since Wagoner was reinstated and no issue is presented by
the complaint on this incident, no findings need be made
concerning it. The General Counsel, however, argues that it
is additional evidence of company animus against Wagoner
for his involvement in the concerted activity. The company,
in offering its evidence on the matter, contended that it shows
that Wagoner was an unsatisfactory employee and that this
was an element properly to be considered when it made its
judgment to discharge him on August 13. I am unable to
accept either view: I recognize the difficulty of maintaining
controls and supervision over men who work long hours,
alone, and away from their employer's premises. However,
the judgments claimed to have been formed on the basis of
the intricate route sheets prescribed by the company and the
unspecified "customer complaints" referred to, tend to con-
tain a large element of subjectivity, and they appear to do so
in this incident. Piccolo testified that, looking for specific
repair parts in Wagoner's truck during his vacation, he found
the truck in a condition he considered "deplorable". On the
basis of this reaction, he prepared a Performance Review
sheet declaring Wagoner "unsatisfactory" in every aspect of
his employment, from his accuracy in making repairs-
which, as far as this record shows, had never been questioned
-to his personal appearance and ability to deal with custom-
ers-which also do not appear to have been questioned. The
intricacy of the company forms in evidence herein indicates
a need for considerable discrimination in rating but there is
" This reinstatement is probably why, on the Performance Review sheet
of July 7 for Wagoner, the word "terminated" is crossed out and the words
"on probation" written in.
729
little evidence of it here; it appears more likely that Piccolo,
upset because he had to search for some missing parts, finding
them in Wagoner's truck, and irritated by what he considered
its untidy condition, "threw the book" at Wagoner," and
prepared the performance review to justify Wagoner's dis-
charge. Moreover, the discharge was rescinded and I cannot
find that it constitutes evidence that Wagoner was an in-
competent or marginally competent employee entitled to less
than the full protection of the Act.16
f. The August discharge of Wagoner
The discharge in issue herein begins with Wagoner's daily
routine on Friday, August 7. His timecard for that day shows
that he clocked in at 7.93 (7:56 a.m.) and his route sheet states
that he "timed in" at 8.0. His route sheet also shows that he
"left store at 8.7" (8:42); that he took his "a.m. break" from
8.7 to 9; and that, after traveling for .3 (18 minutes) he made
his first call at 9.3 (9:18 a.m.). The route sheet shows that,
after several calls in the Albany area, he took lunch from 1.2
until 1.7 (1:12 to 1:42 p.m.) and then drove to Hudson, ap-
proximately 30 miles south, in 54 minutes, where he made a
service call from 2.6 until 3.4 (2:42 to 3:24 p.m.). He took his
afternoon break from 3.4 to 3.6 (3:24 to 3:36) and then drove
to his final call of the day at Copake, New York, about 20
miles southeast of Hudson. He noted the commencement of
that call as 4.3 (4:18 p.m.) and, according to Wagoner's route
sheet, his work there continued until 5 p.m.
On a separate line on his route sheet, Wagoner wrote "sup-
per-5.0 to 5.4" (5 to 5:24 p.m.). On another line he wrote
"to shop-5.4 to 6.0" and, in the column on that same line
headed "travel time", he entered ".6". He also wrote, on an
unoccupied line, "over time per Gray". In the "time" box at
the bottom of the sheet, Wagoner wrote, next to the printed
words "timed out at", the number "7", and listed his total
and net hours as "10.5", which was the proper total, based
upon his entries for working from 8 a.m. until 7 p.m. (11
hours), less the half-hour unpaid lunch period.
Wagoner testified, in agreement with the entry on his route
sheet, that he completed his Copake call at 5 p.m. He testified,
however, that he started back to the shop at once; that he was
on back roads around Copake and lost his way, and that it
took him until about 6:35 to reach the shop. He also testified
that it required 5 to 10 minutes for him to park and secure
his truck for the weekend, which brought his working time
to 6:40 or 6:42, and that he then mentally allowed himself the
20-minute supper period to which he felt he was entitled.
Wagoner's testimony shows that it was according to this
reasoning that he entered the quitting time of 7 p.m. on both
his route sheet and his timecard on Monday morning.
Wagoner's arrival at the company parking lot at approxi-
mately 6:35, as he testified, rather than at the 6 o'clock en-
tered on his route sheet, is abundantly established by Gray's
testimony that he noted the time to be 6:25 as he drive out
of the parking lot and observed Wagoner driving in. Al-
though there is no evidence of the distance from the place
where Gray observed Wagoner to the place where Wagoner
parked the truck and no evidence of the steps or time neces-
" Gray testified that he had ignored many complaints against Wagoner
by Piccolo, regarding them as "just a personality conflict."
16 This is not a rejection of the argument made on this point by company
counsel, which, as I understand it, is that an employer, who may forgive a
transgression justifying discharge when it is committed by a valued or
competent employee, may not be required by the Act to do so when the
transgressor is a troublesome or incompetent one. The test I am endeavoring
to apply in this case is the standard one: was the real reason for the em-
ployee's discharge his protected activity or was it the alleged transgression
assigned by the employer as the reason?
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sary to secure the truck for the weekend, Wagoner testified
that he really quit work at 6:40 or 6:42 p.m. and I accept this
as an accurate statement."
Corroborative of Wagoner's statement, that he started
from Copake immediately after 5 to reach the shop about
6:35, is the fact that on Friday, October 2, Opitz went from
his last call back to the shop to pick up Piccolo, that they
went directly to the home of the customer in Copake visited
by Wagoner on August 7, and after a 6-minute'stop there,
returned directly to the shop. The record does not show why
Piccolo made the trip but, in testifying, he called attention to
the fact that it took them one hour to complete the return trip
of 50 miles. Piccolo, however, made no reference to the fact
that Opitz' route sheet, which records the trip, also shows
that it took them 1.8 hours, or an hour and 48 minutes, to
travel the 49 miles indicated from the shop to the home of the
customer in Copake. A return trip, with the knowledge of the
road gained on the trip out, is likely to take less time than the
initial trip. When Wagoner went to Copake he went from
Hudson, and it was as he was trying to return directly to
Menands, he testified, that he became lost. Accordingly, his
trip from Copake to Menands in one hour and 35 minutes
compares favorably with the outbound leg of the test trip by
Piccolo and Opitz, which took an hour and 48 minutes. On
the basis of this evidence, I credit Wagoner's testimony and
find that he began his return trip from Copake immediately
after completing his work there and that he made no stop on
the way for a supper break.
Wagoner's timecard shows that he worked Monday, Tues-
day, and Wednesday, August 10, 11, and 12, as usual. He
testified that, on Thursday morning, Piccolo told him not to
leave the building because Gray wanted to see him. He went
into Gray's office and found him with some men from the
internal security department of the company. Gray asked
Wagoner whether the entry on the timecard he had written
in for the previous Friday was correct. Wagoner said he
believed it was and Gray thereupon said he was fired because
he had falsified his route sheet and taken "two supper
breaks". Wagoner testified that he then told Gray that he had
not actually taken the break shown on the route sheet but had
merely written it in adjacent to a customer's call because they
had been trained to do it that way: that Gray disregarded his
explanation and said he was fired.
Gray's account of the incident was as follows: he saw Wag-
oner drive into the parking lot as he was leaving it; he asked
another employee with him, not otherwise identified, whether
he recognized the driver, which he did, and to note the time
as 6:25. On Monday afternoon, he testified, he was routinely
going through the timecards "to look for write-ins", which
the timekeeping section "does not ... like to approve without
the supervisor's initials". When he saw Wagoner's card with
the written in quitting time of 7 p.m. for the past Friday
night, he "immediately circled that timecard and wrote on
the timecard, `check out' " .
Gray testified that he then called "Protection" and was
told that a man would be up from Baltimore in a day or so
and he would handle it. Gray then put the timecard back and,
he testified, "Mr. Wagoner continued to work until Protec-
" Wagoner's testimony that he reached the service building at 6:35 is, for
reasons set forth below, quite credible and his testimony that he performed
services until 6:40 or 6:42 was not contradicted.
Respondent's counsel was invited, on cross-examination, to question
Wagoner precisely concerning his work in parking and securing the truck
but did not do so. The two entries on Wagoner's route sheet: travel time of
36 minutes for the 50 miles from Copake to the service building, and his
arrival at the service building at 6 p.m., cannot be reconciled with any of
his other other entries or, with any version of the facts. Respondent makes
no argument on the basis of these entries and I disregard them.
tion Department came in and interviewed Mr. Wagoner in
regard to the unauthorized time he put on his timecard".18
Gray conceded that Wagoner, when called into his office on
the morning of the 13th, first explained that he had made the
"supper break" entries on his route sheet in the manner he
had been instructed and that he explained the hour and 35
minute return trip from Copake by saying he had gotten lost.
Gray's testimony on this subject then became vague and con-
clusionary in expression, stating that Wagoner "changed his
story several times" but again conceding that Wagoner re-
turned to his explanation that the 20-minute supper break
noted on his route sheet was part of his return travel time.
Gray testified that "protection" then advised him to "release"
Wagoner under a code designation for falsification of com-
pany records.
From Burgio's testimony on certain aspects of the incident,
it appears that Gray's version was considerably slanted to
enlarge the scope of the authority which he could exercise in
this matter. Burgio testified that Gray called him and said
that he thought he had a "problem". When asked what it was,
Gray said he had "an employee who falsified work orders and
apparently stated he had performed his duties in excess of an
8-hour day but was, in essence, stealing a half hour from the
company" but that Gray did not name the employee. Burgio
testified that he told Gray to advise the security department
and that he next heard about the matter when Gray called
him to say that the security department had recommended
that Wagoner be "released". Burgio further testified that he
alone had the final authority to effect discharges on matters
involving security and that, even when the security depart-
ment recommended a discharge, he had the right to retain the
employee if he thought the matter involved was "marginal"
and that the employee was basically honest but had made a
mistake. He also testified that he then was informed that
Wagoner was the employee involved and that he directed that
the "work order" be brought to him. Burgion testified that he
"checked the work order, saw where it was almost impossible
for the man to have worked the period of time. . . " since
Gray told him that he was Wagoner come in at 6:30. He
testified that it was then that he told Gray to "release" Wag-
oner.
While it may make little difference which company official
made the actual decision to discharge Wagoner, the differ-
ences between the descriptions of the process by Burgio and
Gray reinforce my conclusion that Gray was not a credible
witness. Another important element in Burgio's testimony
was his statement that he had, and presumably exercised,
authority to retain an employee despite an unfavorable report
by the internal security department in cases where he believed
that the incident was "marginal", or a mistake, and that the
employee was basically honest.
Questions left unanswered in the foregoing statement-and
critical to the decision herein-are: (a) whether Wagoner
honestly believed he was entitled to the 18 or 20 minutes
between the time he completed securing his truck and 7 p.m.
on August 7 as a supper break and (b) the ultimate question:
whether Gray instigated Wagoner's discharge because of the
alleged "falsification" of his records or because of his earlier
concerted activities. These are held in abeyance until some
events following Wagoner's discharge have been described.
18 There is no evidence that Wagoner was interviewed by anyone during
this period. No agent of the security department testified and there was no
reference to any written report. Moreover, Gray testified that it was the day
of Wagoner's discharge "when protection came down" and, since Wagoner
testified without contradiction that he went to Gray's office between 8:30
and 9 a.m., there was little, if any, time for "investigation".
MONTGOMERY WARD & CO., INC.
g. Relevant events following Wagoner's discharge
(i) The phone call
A day or two after Wagoner was discharged, Regional
Manager Burgio testified, Wagoner called him on the tele-
phone and asked why he had been discharged. Burgio an-
swered "you stole $2.00 from the Company".Wagoner re-
plied, according to Burgio, "I have been here five years and
this is the first time I have done anything wrong". To Burgio's
remark that it was "cut and dried" Wagoner answered, ac-
cording to Burgio 's testimony,
For your own good, for the Company's good, you better
put me back on the payroll, because the union and the
Company will save a lot of money because they are going
to put me back to work.
and that he, Burgio, thereupon hung up on him. Wagoner did
not testify to rebut Burgio's testimony and it stands uncon-
tradicted.
Although the company's brief does not mention it, and
makes no argument based upon the foregoing conversation,
it contains two items which, in a full evaluation of the evi-
dence in this case, require discussion: an apparent admission
of wrongdoing and an apparent threat. However, I am not
persuaded that Wagoner's first statement can properly be
construed as an admission of wrongdoing. Wagoner, as his
testimony and demeanor indicate, is a rather simple person.
This flat statement that he had "stolen $2", therefore, made
by a very high company official on a matter not without some
vagueness , as will be seen, might well result in a defensive
reaction on his part. The language and circumstances,
together, are insufficient to convince me that Wagoner then
and there admitted any guilt, particularly in view of his active
prosecution of his claim thereafter. The second statement
Wagoner made indicates a certain pugnacity, also possibly
defensive, but probably based upon his July experience in
reversing his dismissal. His reference in this latter statement
to the involvement of the union carries no explanation in the
record, either directly or by permissible inference, although
the fact that the charge in this case, when ultimately filed, was
filed by Wagoner personally and not by the union may have
been foreshadowed by some reluctance on the part of the
union to represent him this time.
(ii) The grievance
Wagoner testified that he filed a grievance based upon his
discharge, that he attended a hearing in February before four
men, two from the company and two from the union, and that
after hearing all the testimony they decided in his favor to the
extent that they said he was to be reinstated-but without
backpay and on condition that he withdraw the charge he had
filed with the Board. Wagoner testified that he refused to
abide by this decision.
Burgio described the course of Wagoner's grievance in
greater detail: testifying that there was a "second step" meet-
ing in September in Gray's office and a "third step" meeting
in February.19 At the meeting in February, the company men
19 Although I am convinced that Burgio made a sincere effort to testify
accurately, his statement concerning those present at the meeting in Sep-
tember is incompatible with the grievance procedure specified in the con-
tract. The second step, as described, is in the nature of an appeal from the
"unit manager" to the "Metro District Manager" and Burgio is so described
by his signature to the collective-bargaining contract.
Accordingly, he would have been the person involved in the September
meeting and it would have been, as he stated, "step 2" under the contract,
but he would have been the only one officially present. His references to the
meeting at which Meehan, Bub, and O'Grady were also present were, I am
convinced, to the "step 3" meeting in February at which, under the contract,
731
on the panel were Burgio and Meehan;20 the union men were
O'Grady and Charles W. Bub". Burgio testified that Meehan
questioned Wagoner concerning his route sheet and timecard
for August 7; that Wagoner first stated that he took a supper
break between 5 and 5:20 p.m. and then, when asked why,
after returning to the plant at 6:30, he wrote 7 as his quitting
time, Wagoner changed his story to say that he had not taken
his supper break between 5 and 5:20, and that it took him so
long to return from Copake because he "sort of got lost".
Wagoner, on rebuttal, denied that he had first conceded tak-
ing a supper break from 5 to 5:20 and, in view of the above
findings on this point, I accept his denial.
Burgio also testified that at no time in the hearing before
the Joint Grievance Committee did Wagoner make any men-
tion of his concerted activities. No company argument is
based upon this evidence22 but it is to be noted that, at the
time of this hearing, Wagoner had already filed the charge in
this case claiming that his discharge, on August 13, was for
activities on behalf of the union and the decision of the Joint
Grievance Committee recognized the existence of that charge
by requiring Wagoner to withdraw it as prerequisite to his
reinstatement.
An important point, however, in connection with the deci-
sion of the Joint Grievance Committee, is that the union
contract, under which Wagoner filed his, grievance, provides
as follows:
DISCHARGES - Section 18.1
18.1.1. Employees shall not be discharged except for
just cause. A grievance that an employee was discharged
without just cause shall be filed within ten (10) calendar
days from the date of discharge and shall be subject to
the grievance procedure of Article 17 hereof.
* * *
Section 18.2. In the event it is determined an employee
was discharged without just cause, the employee may be
reinstated with or without backpay as the circumstances
warrant ...
and that Article 17 provides that the majority vote of a Joint
Grievance Committee shall be "final and binding".
It follows, from the foregoing, that the decision of the Joint
Grievance Committee that Wagoner be reinstated necessarily
presupposes a finding on its part that Wagoner had been
discharged without just cause, since not otherwise could it
order his reinstatement, even on terms. Although Wagoner's
refusal to accept the decision of the Joint Grievance Commit-
the grievance was directed to be heard by two representatives of the com-
pany and two of the union.
30 Meehan is not specifically identified but Burgio testified that it was
Meehan who conducted the interrogation of Wagoner and William C. Mee-
han, of Baltimore, appeared as counsel for the company in this case.
" As appears from his signature to the collective-bargaining contract,
Bub is secretary-treasurer of the union.
" Although the answer herein states that there was a griveance proceed-
ing and that Wagoner was offered reinstatement, the company has not
contended that the Board should defer to the panel's decision as an arbitra-
tion award. It appears that the matter before the Joint Grievance Committee
was the propriety of Wagoner's 7 p.m. checkout entries on his timecard and
route sheet and that its resolution of that matter necessarily included dispo-
sition of the question whether he believed he was entitled to take the supper
break. Although these are questions which must also be decided herein, they
are not the ultimate issues in this case. Here, the principal question is
whether Wagoner's concerted activity, regardless of the propriety of his
checkout entries, was the real reason for the company's action in discharging
him. Accordingly, the issue in this case is not the same as the one involved
in the grievance proceeding and deference to arbitration is not involved in
this case (See: Raytheon Company, 140 NLRB 883; and note that the
Board's recent decision in Collyer Insulated Wire, etc., 192 NLRB No. 150,
does not appear to affect the applicability of that decision to this case).
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tee appears to release the company from the binding effect of
this finding, it is clear evidence that at least one of the com-
pany officials on the committee believed that Wagoner had
not falsified the company records.
(iii) The employee meetings
There was evidence concerning two employee meetings
subsequent to the discharge of Wagoner that appears to con-
tain matters of relevance. Sullivan testified that, at a meeting
of the road technicians within a month after Wagoner's dis-
charge, Gray declared that a certain diner, where the men
had been accustomed to taking coffeebreaks, was "off limits"
and that anyone seen traveling in that direction without an
official need to do so would be fired for "misappropriation of
company vehicles". Gray also said, according to Sullivan,
that:
He thought he had made his point in August, and that
if he wanted you to work here no one could fire you and
if he didn't want you, no union or person in the world
could save you.
Gray, whose principal testimony followed that of Sullivan,
did not deny having made this statement and I find that he
did.
It also appears, without dispute, that in January of 1971
there was a meeting of the technicians, as well as other per-
sonnel in the service unit, at which officials from the Chicago
headquarters of the company explained the employee rating
system about to be adopted; that Walsh asked a question
concerning overtime work which Gray answered by saying
that the method was not up to him but that the company
wanted it that way. The next morning, Gray called Walsh
and Sullivan into his office: he first "kicked" the door shut,
then kicked a chair and said to Walsh "You son-of-a-bitch,
if you ever embarrass me in front of people like that I will kill
you"; that he then set forth his "favorite pastimes", allitera-
tively and obscenely, and including "to fish and to fight"; that
he then shouted that he "had about all of you" and pointed
at Sullivan, saying: "You are number one" and then at Walsh,
saying "You are number two", but the men did not answer
him.
Gray did not explain or deny the foregoing outbursts; the
company brief, accepting them as having occurred as de-
scribed, characterizes them as showing Gray's "bluntness"
and his penchant for speaking in hyperbole, as if those were
synonomous with truthfulness. I regard the incident as evi-
dence of Gray's persistent belligerence and his bullying char-
acter.
h. Conclusions
The two critical questions in this case, reserved for this
final discussion, are whether Wagoner honestly believed he
was entitled to the supper break and whether Gray's real
reason for instigating Wagoner's discharge was his concerted
activities. In deciding these questions, a major determinative
element in each is my estimate of the credibility of the major
witnesses: Wagoner in the first and Gray in the second.
Wagoner, as indicated above, appears to be a simple per-
son, of modest intellectual capabilities, and probably as petty
and quarrelsome as most people. He was, admittedly, nervous
and confused under the pressure of testifying in this case and
the evidence indicates that he was also nervous and confused
when subjected to pressure by his employment supervisors.
He does not appear on this record, however, as a deliberately
untruthful person and his evidence concerning his actions,
however he may have characterized them under pressure, is
generally consistent with the evidence given by other wit-
nesses and with documentary evidence. Moreover, although
I regard Wagoner, in the main, as a credible witness, almost
all of the evidence supporting the conclusions I reach herein
is either undisputed, based upon records, or derived from
other credible witnesses.
Gray's demeanor and testimony supply the strongest ele-
ment in my conclusion that he regarded the March effort of
the road technicians to improve their working conditions as
a personal affront and that his subsequent actions, with re-
spect to Wagoner at least, were directed toward carrying out
the threat he made one week later to get rid of him, as soon
as a plausible excuse presented itself. His testimony, as ap-
pears herein, was always positive-but not always credible or
consistent with other parts of his own testimony. His answers
to questions were not always responsive but seemed always
composed to justify his conduct or the decisions he had made,
and his demeanor while testifying seemed also adjusted to-
ward that goal. In short, I do not regard Gray as a credible
witness.
Turning, now, to the validity of Wagoner's expressed belief
that he was entitled to a 20-minute supper break on August
7, it must first be noted that the contract provides for a supper
break "when an employee works eleven or more hours in one
day". This contract provision, however, even if it were crystal
clear, does not dispose of the question in this case. The road
technicians all testified that they were given no formal train-
ing course when they became employed by the company and
that they learned company procedures as well as their jobs by
working with more experienced employees." All of them ex-
cept Opitz professed ignorance of the terms of the contract24
and they all testified that they took breaks and made out their
route sheets and timecards as they had been thus informally
instructed by the more experienced employees who broke
them in. Opitz and Wagoner both testified that they believed
they were entitled to a second afternoon break whenever they
worked "overtime" but that they actually took it on only
about half of those occasions. They also testified that such
breaks were usually brief and rarely recorded on their route
sheets. Opitz also testified the he had been told by Piccolo
that, if a man "got hung up late on a call"-late being some-
time after 5 p.m., as he understood it-there was an allow-
ance of 20 minutes for supper. He also testified that on several
occasions when he had been out with Piccolo on refrigeration
calls and completed them late, Piccolo told him not to forget
his supper break when figuring up the timesheet. Piccolo did
not dispute this testimony by Opitz, although he was the
official who customarily approved the handwritten timecard
entries for the road technicians who worked late and would,
therefore, be fully acquainted with their practices.29 Opitz
also testified that there were occasions when he worked late
with Piccolo that they did not actually take the supper break
to which he believed himself entitled but, instead, on his route
sheet added the 20 minutes to the time he actually quit.
" Only one of them, Morriseau, testified that, about 5 years earlier, he
had been given some instructions on the method of filling out route sheets.
34 Opitz, who was the union steward prior to March, testified that he was
"generally familiar" with the contract, but he also testified that he believed
the men were entitled to a late break whenever they worked after 5.
" Piccolo's testimony concerning when the road technicians were enti-
tled to supper breaks, sometimes called "second p.m. breaks" was both
vague and mechanical but, under questioning by company counsel, he tes-
tified that, on the basis of his review of several months of Opitz' route sheets,
there were times when Opitz took breaks after 7 p.m., but that he did so only
after he had worked 8 hours. The sheets he examined are not, as such, in
evidence but his caveat concerning 8 hours of work indicates that the breaks
he was referring to were supper breaks. The major effect of this testimony
-whatever company counsel may have intended it be-is that it shows that
11 hours of work, set forth in the contract as a prerequisite for a supper
break, was not necessarily the method actually followed in daily operations.
MONTGOMERY WARD & CO., INC.
Gray 's description of company procedure under the con-
tract provision was that , if an employee worked from 8 a.m.
until 8 p .m., taking only his lunch period and the a.m. and
p.m. breaks , he would nevertheless automatically have a full
hour deducted from the 12 , half an hour for lunch and half
an hour for a second p .m. break , even though the employee
did not take the second p.m. break . The only way an em-
ployee could be paid for the second p.m. break which he did
not take , according to Gray , was to note on his timecard that
he did not take the late break and to have that notation
approved by a supervisor . As noted above , the only documen-
tary evidence in this case supports Gray 's testimony to the
extent that it shows that about an hour was deducted then
Opitz worked after 9 p . m. but this evidence represents com-
pany procedure at a time long after Wagoner 's discharge.
Since Gray was in control of the timekeeping procedure, the
evidence is self-serving and no reliance may be placed upon
it.
To contradict the testimony of the road technicians con-
cerning their understanding of the breaks to which they
thought they were entitled , the company introduced several
route sheets of Opitz , Sullivan , and Wagoner but conceded
that it had "selected" these sheets . 26 Since the technicians
testified that they sometimes made entries showing the breaks
they took and sometimes they did not , the company 's selec-
tion of the sheets to put into evidence makes it impossible to
regard them as effective contradiction.
As heretofore noted , moreover , the route sheets require
detailed information covering the road technician's move-
ments, calling for both times of day and fractions of hours in
more than one place on the sheet . The timekeeping and
record notations are intricate but they also permit-perhaps
even require-many "adjustments" to keep the various sets
of entries consistent with each other and with company rules
and customs . There is ample , uncontradicted evidence of this
from all the road technicians who testified and no contrary
evidence from the company . On Wagoner 's route sheet for
August 7 , although there is no doubt that his "time out"
entry of 7 p . m. was one such "adjustment" he believed he was
entitled to make , it appears that he was also making an effort
to set forth all the facts , rather than making any effort to
cheat on his time record. To the extent that Wagoner's
records and actions differed from the company 's policies in
those areas , those differences resulted from the company's
failures to communicate its policies to its employees.
A significant contribution to the evidence on this point is
Wagoner 's testimony , not contradicted by Gray , that when
Wagoner asked why he was being discharged , Gray said it
was because he had taken "two supper breaks", thereby im-
plying that one was justified.
Based upon all of the evidence, as detailed above, I find
that, on August 7, Wagoner had reasonable cause to believe
that his overtime work entitled him to a brief supper break;
that he took no break after the completion of the Copake call
but returned at once to the shop , reaching it about 6:35 and
completing his day 's work with the securing of his truck
about 6 :40 p.m .; and that he believed that , not having taken
the break , company procedure permitted him to add it to his
working time, so that his entry of 19 .00 as his quitting time
was an acceptable method of recording his time.
Since Wagoner 's timecard entry was not inconsistent with
a reasonable impression of company practice , the remaining
question for resolution is the company 's-that is, Gray's-
true reason for discharging Wagoner on August 13, for as
appears, the decision was almost entirely that of Gray.
16 Therc were some others produced and the General Counsel examined
them during recess.
733
Following Gray 's March denunciation of the three "agita-
tors"27 and his promise to fire them in June , July, and August,
Wagoner 's performance ratings, which had been reasonably
good during his 5 years of employment , became quite poor.28
As noted above , Wagoner's rating, based upon examination
of his route sheets for March , was 4 plus which , Piccolo
testified , put a man "on the borderline of going to the five
rating", 5 being the maximum . Moreover Gray's grant of
Wagoner 's request for a salary increase about the same time
was based upon Wagoner 's claim of extraordinary perform-
ance in output-the area shown weakest in the otherwise very
good March rating . The performance review of Wagoner's
work , however , prepared by Piccolo on May 8 and described
in detail above , rated Wagoner as unsatisfactory in most
respects and he was put on probation . There is no independ-
ent or objective evidence of any change in Wagoner's per-
formance justifying this change in evaluation of his perform-
ance: only the testimony of Gray and Piccolo that they had
been dissatisfied with him since the previous August, tes-
timony completely refuted by the March report.
The unsatisfactory rating of Wagoner on May 8, and his
consequent probationary status, called for another perform-
ance evaluation in 30 days but there is nothing in the record
to show that one was made . The so-called performance rating
of July 7 or 8 which resulted in Wagoner 's discharge and
reinstatement, and which has been found to have been pre-
pared solely to support that discharge, is the only item in
Wagoner 's record between May 8 and his ultimate discharge
on August 13.
The incident leading to Wagoner 's discharge , as recounted
by Gray, started with his noting Wagoner 's entry into the
parking lot at, as he put it , 6:25, but there is no explanation
for his elaborate by-play in calling the attention of the em-
ployee with him to Wagoner 's presence and asking him to
note the precise time . Wagoner testified , without contradic-
tion by Gray , that he had received permission from Gray to
go into overtime to make the call in Copake . In view of Gray's
supervisory responsibility over the road technicians and his
distaste for allowing overtime work , there is no special signifi-
cance in his making a note of Wagoner 's time of arrival at the
shop that evening but he seems to have gone beyond that.
Again , there would ordinarily be no basis for drawing any
inference from Gray 's checking of Wagoner 's timecard to see
whether the checkout time written on it by Wagoner agreed
with his observed time of Wagoner's arrival at the shop but,
here again , Gray 's conduct appears to be an elaborate stage
play. Although there is no express contradiction of Gray's
testimony that it was on Monday afternoon that he wrote the
words "check out" on Wagoner's timecard just below the
handwritten entry " 19.00" and the initials "O.W." in the
"out" column and that he then encircled these notations, it
is strange that Wagoner , who used that card to check in and
out on both Tuesday and Wednesday, made no reference to
2' Gray testified that the three he had in mind were Opitz, Wagoner, and
Sullivan, but that he never named them until he was interviewed by Govern-
ment investigators . Sullivan, however , testified that on the day of the meet-
ing Piccolo named the three men to whom Gray referred and said Gray had
given the names to him. Neither Gray nor Piccolo disputed this testimony.
38 Although Piccolo prepared the performance rating, it may be inferred
that he did not do so with complete independence of Gray, his immediate
supervisor . Sullivan, another of the "agitators", had received a performance
rating signed by Piccolo on April 15 which marked him "satisfactory" in
every respect. Piccolo nevertheless testified that he put Sullivan on proba-
tion about the middle of May. Sullivan testified , without contradiction, that
Piccolo, while giving him the performance review which put him on proba-
tion, said that he had been instructed by Gray to "write him up" and give
him unsatisfactory ratings and that he was doing so, although he did not
necessarily agree with all of it.
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these highly visible markings. Accordingly, and in view of my
strong reservations concerning Gray's credibility, I do not
accept Gray's account of his procedure. Moreover, there are
other notations on this timecard which, while unexplained on
this record, nevertheless raise several questions which are
discussed below.
Several details on Wagoner's route sheet for August 7, as
well as on his timecard for the week ending Wednesday,
August 12, raise questions concerning the company's "inves-
tigation" into Wagoner's alleged misconduct. No agent of the
internal security department of the company testified and,
notwithstanding Gray's statement that Wagoner's discharge
came after he had been interviewed, Wagoner testified that he
had no indication of anything unusual until Piccolo sent him
to Gray's office Thursday morning29 On the route sheet there
are partially erased red crayon markings around the entries
of 5.0 to 5.4 for supper and around those of 5.4 to 6.0 for
return travel to the shop. From these there is a partially
erased red line leading to the "timed out" entry of 7 p.m.
These markings indicate that someone saw a need for investi-
gation, but the obvious inconsistency in'these figures cannot
justify a conclusion that the entries in themselves prove an
attempt to defraud the company. The record does not disclose
who made these crayon markings or why they were partly
erased. The total absence of any evidence concerning the
alleged "investigation", and the few minutes available, ac-
cording to the company's own evidence, for any investigative
functioning by the representative of the security department,
is in marked contrast to Gray's repeated references to the
company's "investigation". This marked contrast justifies all
inference that there was, in fact, no independent investigation
as the foundation for Wagoner's discharge but that, on the
contrary, the sole function of the "internal security" man was
to lend an appearance of justification to the discharge that
Gray had threatened and for which he now believed he had
a basis.
Wagoner's timecard also raises some questions that should
have, been, but were not, answered on this record. Next to
Wagoner's "out" entry of "19.00" is the notation, in a hand-
writing obviously not his but closely resembling the one used
to enter totals in the "hours daily" column on all the cards
in evidence, "Pd per 113" and, in the "hours daily" column,
"10.5". The total time between Wagoner's timeclock "in"
entry of 7.93 and his handwritten "out" entry of 19.00, is 11
hours; the deduction of the usual half hour for lunch reduces
that total figure to 10.5 hours. Wagoner's route sheet, how-
ever, which Gray claims he inspected, states that Wagoner
took a supper break. Accordingly, regardless of when it was
taken and on the basis of the company procedure Gray
claimed was automatic, a half hour, or at least 20 minutes,
would have been deducted for the supper break and Wagoner
would have been paid only for time he actually worked.30
There is no evidence concerning the origin of the "Pd per
113" entry and no explanation for it. Judicial notice, how-
ever, may be taken of the fact that, in many large organiza-
tions, persons are sometimes designated by numbers and I
draw the inference that someone bearing the identification
number 113 authorized payment to Wagoner for working
until his claimed checkout time of 7 p.m. Whether 113 is
Gray's number or that of a subordinate is immaterial since
Gray testified that he gave the matter his personal attention.
Had the matter been treated routinely, Wagoner would
have been paid only until 6:30 or 6:40, to which time he
admittedly worked. The unexplained notation, indicating au-
thorization for payment until 7 p.m., makes it impossible to
avoid an inference that there was some special reason for
paying Wagoner until 7 p.m., the final 20 or 30 minutes of
which, the company contends, was improperly and dishon-
estly" claimed. This inexplicable procedure also makes it
impossible for me to avoid a step that is taken not lightly, but
only after the most serious deliberation and consideration of
'the evidence and the witnesses in this case: I am compelled
to draw the inference that the direction that Wagoner be paid
until 7 p.m. was for the express purpose of having him paid
for the final 20 or 30 minutes of the day on the basis of a claim
that could later be branded unjustified and made the basis for
his dismissal from employment. I am also compelled to draw
the further inference that Gray, who was the head of the
service unit, directed this action for that purpose. It also
appears that Gray, by describing Wagoner's conduct as
"stealing" in his initial report to Burgio, endeavored, success-
fully, to influence Burgio to order the discharge of Wagoner
instead of applying his rule that a "marginal" infraction by
a basically honest employee (there is no evidence that Wag-
oner had ever been accused of dishonesty) may be regarded
as a "mistake" and the employee retained.
The time lag between Gray's threat to discharge Wagoner
and its accomplishment, which normally would raise a sen-
ous doubt concerning any relationship between the two, does
not raise any such doubt in this case, because in March, when
Gray announced his intention to discharge the "agitators", he
also announced that his timetable to accomplish this objective
was "one in June, one in July, and one in August", and he
warned his audience that when he made a statement he ad-
hered to it. From his repeated use of military expressions and
his manner of addressing his subordinates, it is apparent that
Gray regarded this announced objective as a campaign hav-
ing both tactical and strategic aspects. His careful notation of
Wagoner's time of return to the shop on August 7, including
the drafting of a witness, shows that he was alert to test every
possible tactical opportunity which might serve his an-
nounced strategic objective of firing Wagoner. Moreover,
when it had been accomplished, he proclaimed to his subordi-
nates that he had achieved his objective.
Finally, it is important to note that there is not even a
contention in this case that Wagoner had ever previously
manipulated his time records and there is no credible evi-
dence that he had ever been given even a reprimand for
shortcomings in any aspect of his recordkeeping. Moreover,
company animus is clearly shown in Gray's declared inten-
tion to discharge the "agitators" and, admittedly, Gray con-
sidered Wagoner one of them.32
Based upon all of the foregoing, I"find that Wagoner was
discharged because of his concerted activities and that the
reason assigned by the company for his discharge, was a pre-
text to mask its true reason.
29 Company counsel put no questions to Wagoner concerning any such
interview and I find that none occurred
'° Gray's testimony that the men were paid solely on the basis of their
timecard entries was obviously designed to neutralize the full disclosure on
Wagoner's route sheet but Gray's further statement that on Monday, several
days before the end of the payroll week on Wednesday, he looked at Wago-
ner's route sheet for August 7, makes that testimony irrelevant.
" Both Burgio and Gray accused Wagoner of "stealing" half an hour or
$2, from the company
" Compare Tierney Electrical Manufacturing Company, 192 NLRB No.
41, where the Board, citing previous plant rule violations by the employee
and the lack of union animus against him, reversed the finding of the Trial
Examiner that the rule violation was "so trivial as to imply a discriminatory
motivation"
MONTGOMERY WARD & CO., INC. 735
5. The effect of the unfair labor practice upon commerce ORDER
The activites of respondent, set forth in finding of fact 4,
above, occurring in connection with its operations described
in finding of fact 1, above, have a close, intimate, and substan-
tial relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow thereof.
6. The remedy
Having found that respondent has engaged in an unfair
labor practice, I shall recommend that it cease and desist
therefrom and take affirmative action designed to effectuate
the purposes of the Act.
Having found that respondent, by discharging Olin Wag-
oner for engaging in activities protected by the Act, commit-
ted an unfair labor practice, I shall recommend that it offer
him reinstatement to the position he held on August 13, 1970,
or, if that position no longer exists, to a position substantially
equivalent thereto, without loss of seniority or other rights
and benefits, and that it make him whole for any loss of
compensation he may have suffered, computed in the manner
prescribed in F W. Woolworth Company, 90 NLRB 289, and
with interest as prescribed in Isis Plumbing & Heating Co.,
138 NLRB 716.
In view of the nature of the unfair labor practice found
herein to have been engaged in by respondent, which indi-
cates its determination to interfere aggressively with its em-
ployees' rights of self-organization, I shall recommend a
broad cease-and-desist order herein.33
Upon the foregoing findings of fact and upon the entire
record herein, I reach the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The union is a labor organization within the meaning of
Section 2(5) of the Act.
3. At the time of the activities set forth in the Decision, Sam
S. Burgio, James Gray, Italo Piccolo, and Keith Acker were
supervisors of respondent within the meaning of Section 2(11)
of the Act and acted as its agents.
4. By discharging Olin Wagoner for engaging in concerted
activities for the purpose of collective bargaining and other
mutual aid and protection, respondent interfered with, re-
strained, and coerced employees in the exercise of rights guar-
anteed in the Act and committed an unfair labor practice
within the meaning of Section 8(a)(1) of the Act.
5. The foregoing unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law, and
upon the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:34
N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1951).
In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , and recommended Order herein shall, as provided in
Section 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.
Respondent, Montgomery Ward & Co., Incorporated, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging any employee because he or she engaged
in concerted activities for the purpose of collective bargaining
or mutual aid or protection.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-organ-
ization, or to engage in concerted activities for the purpose
of collective bargaining and other mutual aid or protection,
or to refrain from any and all such activities.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Offer to Olin Wagoner immediate and full reinstate-
ment to his former position or, if that position no longer
exists, to a position substantially equivalent to that which he
held immediately prior to August 13, 1970, without prejudice
to his seniority or other privileges, and make thim whole for
any loss of wages in the manner set forth in the section of the
Decision entitled "The remedy".
(b) Notify immediately the above-named individual, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after dis-
charge from the Armed Forces, in accordance with the Selec-
tive 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, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(d) Post at its Service Unit at Menands, New York, copies
of the attached notice marked "Appendix"." Copies of said
notice, on forms provided by the Regional Director for Re-
gion 3, after being duly signed by its representative, shall be
posted by it immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by it to
insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 3, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith .31
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The trial held at Albany, New York, on June 9 and 10, 1971,
in which we participated and had an opportunity to give
evidence, resulted in a decision that we had committed an
" In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "POSTED
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN OR-
DER OF THE NATIONAL LABOR RELATIONS BOARD."
14 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 3, in writing , within 20 days from
the date of this Order , what steps the Respondent has taken to comply
herewith."
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practice in violation of Section 8(a)(1) of the
National Labor Relations Act, as amended , and this notice
is posted pursuant to that decision.
The National Labor Relations Act, as amended, gives
all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all such activities
In recognition of these rights , we hereby notify our em-
ployees that:
WE WILL NOT discharge any of our employees be-
cause they engage in concerted activities for collective
bargaining or other mutual aid or protection.
WE WILL offer Olin Wagoner immediate and full rein-
statement to his former job or , if this job no longer exists,
to a substantially equivalent position , without prejudice
to his seniority or other rights and privileges , and make
him whole for any loss of earnings he may have suffered
by reason of his discharge.
WE WILL NOT in any other manner interfere with, re-
strain , or coerce employees in the exercise of their right
to self-organization , to form labor organizations , to bar-
gain collectively through representatives of their own
choosing , to engage in concerted activities for the pur-
pose of collective bargaining or other mutal aid or pro-
tection, or to refrain from any and all such activities,
except to the extent that such right may be affected by
an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized by Sec-
tion 8(a)(3) of the Act.
MONTGOMERY WARD & CO.,
INCORPORATED
(Employer)
Dated By
(Representative) (Title)
WE WILL notify immediately the above-named individual, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement , upon application after dis-
charge from the Armed Forces, in accordance with the Selec-
tive Service Act and the Universal Military Training and
Service Act.
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced, or
covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, Federal
Building, 9th Floor, 111 West Huron Street, Buffalo, New
York 14202, Telephone 716-842-3100.