Montgomery Ward & Co.

National Labor Relations Board - Board Decisions

Apr 19, 1995

316 N.L.R.B. 1248 (N.L.R.B. 1995)

1248
316 NLRB No. 191
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The name of the Charging Party has been changed to reflect the
official name of the International Union.
2 The General Counsel and the Respondent have excepted to some
of the judge’s credibility findings. The Board’s established policy is
not to overrule an administrative law judge’s credibility resolutions
unless the clear preponderance of all the relevant evidence convinces
us that they are incorrect. Standard Dry Wall Products, 91 NLRB
544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing the findings.
3 All dates are in 1992, unless otherwise indicated.
4 In his recitation of Cato’s statement in sec. II,A,2, par. 4, of his
decision, the judge omitted the phrase ‘‘or organization.’’
5 We do not pass on the issue of whether these statements were
also threats of strikes and violence.
Montgomery Ward & Co., Incorporated and Ware-
house Employees Local Union No. 730 of the
Metropolitan Area of Washington, D.C. and
Vicinity a/w International Brotherhood of
Teamsters, AFL–CIO.1 Case 5–CA–22686
April 19, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
On April 6, 1993, Administrative Law Judge David
L. Evans issued the attached decision. The General
Counsel and the Charging Party filed exceptions and
supporting briefs. The Respondent filed cross-excep-
tions and a supporting brief, and briefs in response to
the General Counsel’s and Charging Party’s excep-
tions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions, cross-exceptions, and
briefs and has decided to affirm the judge’s rulings,2
findings, and conclusions only to the extent consistent
with this Decision and Order.
I. BACKGROUND
The Respondent operates distribution facilities that
supply merchandise to its retail stores. In January
1992,3 the Respondent opened a distribution center in
Brandywine, Maryland, to service 39 retail stores in
the Metropolitan Washington, D.C. area. Brandywine,
a 600,000-square-foot facility, has 200 loading docks
and approximately 200 employees.
The Brandywine facility replaced distribution facili-
ties in Laurel and Baltimore, Maryland, which the Re-
spondent closed. Although some employees from the
unrepresented Laurel facility and the Union-rep-
resented Baltimore facility transferred to Brandywine,
70 percent of the Brandywine employees were new
hires.
The Union began an organizing campaign before
Brandywine opened. In January or February, the Union
began leafleting the Brandywine parking lot and dis-
tributing authorization cards to the Respondent’s em-
ployees.
The Respondent knew of the Union’s organizing ac-
tivity. As discussed below, the Respondent held meet-
ings in late February and March to inform employees
that it opposed union representation. In addition, on
March 20, the Respondent distributed a memo to all
employees urging them not to sign union authorization
cards.
II. THE 8(A)(1) ALLEGATIONS
About late February, the Respondent held a meeting
of all Brandywine employees. This meeting was con-
ducted by Thomas Cato, the Respondent’s vice presi-
dent of logistics in charge of its distribution centers;
James Schmitt, manager of the Brandywine facility and
East Coast distribution facilities; and Brandywine oper-
ating manager, Mike Cardamone. In the meeting, Cato
congratulated the employees for their hard work and
said that he looked forward to a fruitful working rela-
tionship. Cato told employees that they could resolve
any problems they had among themselves without
third-party representation, stating, ‘‘We don’t need no
other third-party or organization come in here over my
dead body.’’4
In mid-March, Cato conducted a series of group
meetings for Brandywine employees. In these meet-
ings, which were attended by Schmitt and Cardamone,
Cato compared the Brandywine benefits to those at the
Baltimore facility. Cato also discussed the Union’s or-
ganizing drive, authorization cards it was distributing,
and the procedures for a Board election. In one of the
meetings, which was attended by about 60 employees,
Cato further stated that ‘‘there would be blood on the
floor before the Union came in.’’
The General Counsel contends that Cato’s ‘‘over my
dead body’’ and ‘‘blood on the floor’’ statements inter-
fered with employees’ Section 7 rights in violation of
Section 8(a)(1). Although the judge found these state-
ments, uttered by the ‘‘ultimate supervisor of over
7,000 employees,’’ bespoke ‘‘the rawest variety of
anti-union animus,’’ he concluded that they were not
encompassed by the complaint. Accordingly, he rec-
ommended dismissing the 8(a)(1) allegations.
The General Counsel excepts, arguing that Cato’s
comments unlawfully threatened strikes and violence
and predicted that it would be futile for employees to
select the Union, as alleged in paragraphs 5(b) and (c)
of the complaint. The General Counsel additionally ar-
gues that Cato’s statements were fully litigated. For the
following reasons, we find merit in the General Coun-
sel’s argument that Cato’s statements were unlawful
predictions of futility.5
1249MONTGOMERY WARD & CO.
6 Par. 5(c) alleges that the Respondent violated Sec. 8(a)(1) about
March 9, 1992, when Cato ‘‘[i]nformed its employees that it would
be futile for them to select a union as their bargaining representa-
tive.’’
7 Marcar Industrial Uniform Co., 306 NLRB 27 fn. 1 (1992).
8 Money Radio, 297 NLRB 698, 702 (1990).
9 South Nassau Communities Hospital, 262 NLRB 1166, 1175
(1982).
10 New employees were on probation for 90 days. Although an
employee’s probationary status may sometimes have a strong bearing
on the question whether his or her discharge was unlawful, we agree
with the judge that the fact that Guss was a probationary employee
is irrelevant in evaluating whether the Respondent unlawfully dis-
charged him for engaging in union activities.
Initially, we find that Cato’s ‘‘over my dead body’’
and ‘‘blood on the floor’’ statements unlawfully con-
veyed to employees the futility of selecting the Union,
as alleged in paragraph 5(c) of the complaint.6 In com-
parable circumstances, the Board has found unlawful
threats of futility where employers told employees that:
‘‘the union is not going to come in here, not even by
force’’;7 it would ‘‘sooner die than let the Union in’’;8
and it would be unionized ‘‘over my dead body.’’9
We also agree with the counsel for the General
Counsel that these statements were fully litigated. In
addition to the complaint allegations, the General
Counsel argued in her opening statement that the Re-
spondent told employees at a meeting that Brandywine
would be unionized over its dead body. Thereafter,
witnesses for the General Counsel and Respondent tes-
tified and were cross-examined about Cato’s comments
at the employee meetings.
In these circumstances, we find that Cato’s ‘‘blood
on the floor,’’ and ‘‘over my dead body’’ statements
unlawfully implied to employees that it would be futile
to select the Union, in violation of Section 8(a)(1).
III. THE 8(A)(3) DISCHARGES
A. Dennis Guss
1. Background
The Respondent fills between 1500 and 3000 orders
daily at the Brandywine facility for shipment to its
area retail stores. The Respondent employs approxi-
mately 16 warehouse employees, or ‘‘order fillers,’’ to
fill these orders. The order fillers are under the super-
vision of Manager Todd Lennox and two group heads.
Initially, Pat Proctor was the sole group head. In ap-
proximately late March, Ruth Culver also became a
group head.
Each day, order fillers are provided with ‘‘picking
tickets’’ of merchandise they are to pull. Order fillers
are required to initial their tickets, for purposes of ac-
countability. When picking tickets are lost, supervisors
track down the tickets and return them to the respon-
sible warehouse employees. According to the Respond-
ent, lost tickets were a problem at the Brandywine fa-
cility. As a consequence, the Respondent purportedly
reminded warehouse employees at least twice weekly
that they were responsible for their tickets.
After securing their tickets, order fillers are respon-
sible for locating ordered merchandise, affixing the
ticket to it, and transporting the ticketed merchandise
to the appropriate loading bay for truck delivery. Order
fillers place small merchandise on an overhead con-
veyor system for transport, and use hydraulic equip-
ment to move larger items to shipping lanes adjacent
to the loading bay.
The Respondent claims that its goal was to have
warehouse employees pick 30 pieces of merchandise
per hour. It acknowledges that in April not all ware-
house employees had met this goal.
2. Guss’ employment
On February 24, the Respondent hired Dennis Guss
as an order filler in its Brandywine facility.10 In addi-
tion to filling orders, Guss helped unload incoming
trucks, worked in the security cage with ‘‘top dollar’’
merchandise, and helped load heavy merchandise onto
trucks for shipment. Only Guss’ ticketed work was
tabulated when computing his hourly production.
Lennox frequently told Guss he did good work.
About 3 weeks before his April 17 discharge, Lennox
asked Guss to work with an employee who had dam-
aged a significant amount of merchandise while mov-
ing it, and to report back on this employee’s perform-
ance. Guss was also one of the few warehouse em-
ployees asked to work overtime almost weekly.
Prior to April 16, Lennox never told Guss that his
production level was unsatisfactory. On the contrary,
during their only discussion about Guss’ productivity,
Guss said his average was pretty good considering the
additional duties Lennox gave him, and the fact that
Guss’ hydraulic equipment frequently was unavailable.
Lennox agreed.
3. Guss’ union activities
In April, at the Union’s request, Guss encouraged
Brandywine employees to attend an organizing meet-
ing. Guss spoke with 18 to 24 employees about the
meeting at lunchtime in the employees’ cafeteria, and
after work in the Brandywine parking lot.
Guss and fellow employees Groenwoldt and Hol-
lingsworth attended the Union’s April 13 organizing
meeting. At this meeting, held at a nearby motel, Guss
signed an authorization card and received cards to dis-
tribute to other employees. At the meeting, the Union
proposed writing the Respondent that the three em-
ployees were on its organizing committee. The em-
ployees declined, saying that they did not want the Re-
spondent to know of their activities.
1250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Prior to the April 16 meeting, Guss had not been informed that
Culver was his group head. However, Culver had given Guss in-
structions twice before this meeting. About a week before his dis-
charge, Culver told Guss to stack merchandise higher in the lanes.
On a second occasion, Culver instructed Guss to place returned mer-
chandise back in stock. Guss complied with both requests.
12 Lennox admitted that he sometimes transferred work from one
order filler to another. Lennox testified that in these instances he left
it to the employee reassigned the work to make sure that he or she
was credited with the ticket. There is no evidence, however, that
prior to his April 16 meeting Lennox informed employees that they
had this responsibility.
13 Culver testified that another employee found Guss’ lost tickets
and gave them to her. Culver said that, following standard proce-
dure, she then photocopied the tickets and gave the originals and
copies to Lennox. Culver further testified, however, that although
sometimes as many as one or two tickets were lost daily, she had
never photocopied a lost ticket, and could not identify any employee
besides Guss who had ever lost a ticket.
Lennox conversely testified that an employee handed him Guss’
lost tickets, and that he gave them to Culver for duplication. Lennox
further averred that he then called Guss into his office, gave him the
lost tickets, and reminded him of the importance of tickets. Lennox
testified that he then spoke to Operating Manager Cardamone about
the matter.
In crediting Guss, the judge found that Culver’s and Lennox’s tes-
timony was conflicting, evasive, and demonstrated that the Respond-
ent had no procedure for copying lost tickets. The judge additionally
found, and we agree, that Culver’s and Lennox’s discredited testi-
mony demonstrates the Respondent’s ‘‘extraordinary exercise in
case-building’’ when documenting Guss’ (admitted) error in losing
the picking tickets.
14 After scanning, the loaders place the merchandise on hand-
trucks, pallet jacks, or forklifts and load it onto the trucks.
Thereafter, however, beginning April 14, Guss dis-
cussed the Union with 18 to 20 employees in the cafe-
teria at lunch and in the parking lot after work. Guss
also distributed about six to eight authorization cards
to employees. After a couple of days, Guss informed
the Union that he and Groenwoldt wanted to ‘‘cool it
for awhile’’ because they thought that the Respondent
was watching them more closely.
4. Events of April 16 and 17
On April 16, Lennox called Guss into his office.
Group Head Culver was also present.11 Lennox told
Guss that Culver was having trouble getting him to
follow her instructions. Guss responded that he was
helping other people in the shipping department and
taking tickets from other order fillers. Lennox said that
it was Guss’ responsibility to pull orders and make
sure that he was credited for additional work.12 Len-
nox also said that Guss was pulling 16.08 pieces per
hour and that his production should increase to 20 to
25 pieces hourly. At the end of the meeting, Lennox
told Guss that he had not made a decision what to do
about this matter.
After the April 16 meeting, Culver told Guss she
was not trying to be difficult. Guss said that he would
comply with Culver’s requests, and she responded that
everything was fine.
On April 17, Guss misplaced two picking tickets.
While Guss was searching for the lost tickets, Culver
returned them to him without comment.13 Guss worked
the remainder of his shift without incident. Before
quitting time, Culver asked Guss to work overtime the
next day.
After Guss’ shift ended, Lennox paged him. When
Guss arrived at his office, Lennox invited him outside
for a cigarette. Once outside, a shaking Lennox told
Guss, ‘‘This is from the man up above. I have to let
you go.’’ When Guss responded, ‘‘This is bullshit,’’
Lennox replied, ‘‘I know it is bullshit, but the man up
above said I have to let you go.’’ Guss asked to speak
to Cardamone, the ‘‘man up above’’ to whom Lennox
referred.
Lennox took Guss to Cardamone’s office and di-
rected him to wait outside. Several minutes later, Guss
was admitted to the office where Cardamone told him
he was terminated. When Guss asked for another
chance, citing instances where other employees had
made mistakes, Cardamone said, ‘‘Nope, you’re gone,
bye.’’
The Respondent wrote on Guss’ termination notice
that he was discharged for failing to follow instruc-
tions, productivity, and lost tickets. ‘‘Lost tickets’’ pur-
portedly referred to the two tickets Guss misplaced on
April 17, as well as another ticket that the Respondent
claims Guss lost about 3 weeks before his discharge.
Guss testified that he did not remember losing tickets
before April 17 and that the Respondent never spoke
to him about lost tickets prior to that date.
B. Paul Groenwoldt
1. Background
In addition to order fillers, the Respondent employs
‘‘loaders’’ to move merchandise from the overhead
conveyor system and shipping lanes and load it onto
trucks for transport. Before loading merchandise from
either source, loaders are required to scan bar codes on
picking tickets affixed to the merchandise with an elec-
tronic ‘‘gun.’’ This scan records the item’s withdrawal
from the Brandywine inventory, and its shipment to a
retail store. Loaders have also been directed to draw
a red line through the bar code after scanning an item
to verify that it has been scanned.
Loaders scan tickets on smaller merchandise as it is
removed from the conveyor belts. Initially, loaders
were also permitted to scan tickets on large items in
the shipping lanes where the order fillers deposited
them.14 Because of inventory problems, however, the
Respondent painted red squares on the floor adjacent
to the various loading bays about April 1, and in-
1251MONTGOMERY WARD & CO.
15 The Respondent asserts that during Brandywine’s first 6 months
of operations, approximately $300,000 worth of merchandise was not
scanned before shipment. The Respondent claims that this amount of
unscanned merchandise was 10 times higher than at its other dis-
tribution facilities.
16 There is no evidence that Hollingsworth—who was still em-
ployed by the Respondent at the time of the hearing—engaged in
union activities after the April 13 union meeting.
17 The judge stated that Schmitt presumably was watching all load-
ers on April 17. The General Counsel excepts that there is no evi-
dence to support this assumption. We agree. Despite Schmitt’s testi-
mony that he frequently watched his monitor screen, he did not
claim that he observed anyone other than Groenwoldt on April 17.
18 The judge found that there was no evidence that Cardamone
read Groenwoldt’s Teamsters’ notation before responding to his
question or that, even if he did, his response was to that notation
Continued
structed loaders to scan merchandise from the shipping
lanes in the appropriate square.15
In addition to ensuring that merchandise is properly
scanned, loaders are responsible for ensuring that the
conveyor system does not back up. If merchandise is
not removed from the conveyor as it passes, it recircu-
lates throughout the system. Occasionally, this recir-
culation causes backups which jam the system. When
this occurs, a red light flashes and personnel are re-
quired to clear the blockage. The Respondent has re-
peatedly instructed loaders that they are not to let the
red light flash. Indeed, Operating Manager Cardamone
regularly cautioned employees to make sure their red
lights are off, to scan merchandise in the square, and
to position items so that the bar codes are visible to
auditors at the loading bays.
2. Groenwoldt’s employment
On February 21, the Respondent hired Paul
Groenwoldt as an order filler. Within a few weeks,
Groenwoldt was transferred to the shipping depart-
ment, as a loader, under Supervisor Gottshall. When
Groenwoldt started as a loader, he was trained to scan
large merchandise in the lanes. After the Respondent
instituted its ‘‘red box’’ system, Groenwoldt was in-
structed in this new procedure. Thereafter, Groenwoldt
scanned in the square about half of the time. The re-
mainder of the time he scanned in the lanes when they
were backed up, and in order to prevent the red light
from flashing. Groenwoldt testified that he frequently
observed other loaders scanning large merchandise out-
side the red squares.
Groenwoldt testified, without contradiction, that
Gottshall frequently told him he was doing a good job.
Groenwoldt’s personnel files contained no warnings or
evidence of other discipline.
3. Groenwoldt’s union activities
In April, Guss talked to Groenwoldt at work about
the April 13 union meeting. Groenwoldt attended the
meeting with employees Guss and Hollingsworth,
signed an authorization card, and took blank cards to
distribute to other employees. Beginning April 14,
Groenwoldt talked to six or seven employees about the
Union and encouraged them to sign authorization
cards.16 These discussions took place at the Brandy-
wine facility at lunch and after work. After April 14,
Groenwoldt testified that he and Guss decided to tone
down their union activities during their probationary
periods, because members of management were in
their work areas much more often than usual.
4. Events of April 12 and 15
On April 12 or 13, Cardamone observed a loader,
Tate, scanning several items in the shipping lanes in-
stead of in the red box. Cardamone reprimanded Tate,
stressed the seriousness of his offense, and told him
that he could be terminated if he continued scanning
outside the square. Cardamone testified that he re-
peated his instructions and warnings to Tate to stress
the seriousness of Tate’s conduct.
About April 15, Cardamone and Facility Manager
Schmitt observed Groenwoldt scan an item outside the
square. Cardamone reminded Groenwoldt about proper
scanning procedure, and asked him if he understood
his training.
5. Events of April 17
On April 17, Gottshall moved Groenwoldt from his
usual loading area to two busier lanes which
Groenwoldt knew could be watched by the Respond-
ent’s closed-circuit camera system. Gottshall also told
Groenwoldt that Cardamone wanted to see him at the
end of his shift.
Brandywine Manager Schmitt has a monitor for the
closed-circuit camera system in his office. With this
monitor, Schmitt can view the entire facility—inside
and out—except for the offices and restrooms. On the
afternoon of April 17, Schmitt testified that he ‘‘hap-
pened to observe’’ Groenwoldt on the monitor, scan-
ning items outside the red square.17 Schmitt instructed
Cardamone to discharge Groenwoldt.
When Groenwoldt reported to Cardamone’s office
after work on April 17, he observed Guss being ush-
ered out exclaiming, ‘‘This is bullshit.’’ When
Groenwoldt entered the office, Cardamone read him a
notice of discharge stating that, despite repeated in-
structions on proper scanning procedures, Groenwoldt
was observed scanning outside the red squares on
April 15 and 17. When Groenwoldt offered to do bet-
ter, Cardamone exclaimed, ‘‘No you won’t.’’
Groenwoldt then signed the termination notice, writing
‘‘Teamsters’’ below his signature. Groenwoldt pushed
the notice toward Cardamone, asking, ‘‘Is this the rea-
son I’m being fired?’’ Cardamone muttered a response
that Groenwoldt did not understand.18
1252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rather than the written reasons on the notice for Groenwoldt’s dis-
charge.
19 The judge found it incredible that the Respondent could simulta-
neously claim that the lost ticket problem was so significant that
management held almost daily conferences with employees on the
subject and that Guss was the only employee that it ever caught los-
ing tickets.
20 The judge stated that ‘‘the Board has never held that knowledge
of some union activity by some employees creates a presumption of
knowledge of the protected activities of any employee who engages
in protected activities and who is discharged for pretextual reasons.’’
C. Judge’s Findings
The Respondent argued that it discharged Guss be-
cause he: (1) would not follow instructions from Group
Leader Culver; (2) was slow in filling orders; (3) lost
a picking ticket 3 weeks before his discharge; and (4)
lost two picking tickets on April 17. The judge found
the Respondent’s purported rationale for firing Guss
was a ‘‘fabrication of the first order’’—as acknowl-
edged by Lennox to Guss, and was supported by ‘‘un-
doubtedly perjurious’’ testimony.19 Additionally, the
judge concluded that the Respondent had discriminated
against Guss and had demonstrated virulent antiunion
animus at its highest levels.
Regarding Groenwoldt, the judge initially concluded
that his failure to scan in the red squares was im-
proper, even if other employees also had failed to do
so. The judge further found, however, that Cardamone
gave no warning to Groenwoldt on April 15 com-
parable to that given Tate. Thus, instead of repeatedly
warning Groenwoldt about the seriousness of scanning
outside the box and admonishing him that a further in-
fraction would result in his discharge—as it had done
with Tate—Cardamone merely reminded Groenwoldt
of proper scanning procedure on April 15.
The judge next determined that the clear implication
of Groenwoldt’s reassignment to busier lanes on April
17, and Gottshall’s statement that Cardamone wanted
to see him at the end of the day, was that Groenwoldt
was being setup for discipline. This setup succeeded
when Schmitt ‘‘happened to observe’’ Groenwoldt on
the closed-circuit monitor scanning outside the box,
and directed Cardamone to discharge Groenwoldt. The
judge found that Cardamone carried out these instruc-
tions even though he knew that Groenwoldt had not re-
ceived the same categorical warning afforded Tate.
Although the judge found that Guss and Groen-
woldt: (1) engaged in union activities; (2) were dis-
criminated against by the Respondent shortly after en-
gaging in these activities; and (3) that the Respondent
demonstrated strong antiunion animus, at its highest
corporate levels, he nonetheless recommended dismiss-
ing allegations that their discharges violated Section
8(a)(3) and (1). The judge found that a requisite ele-
ment of the General Counsel’s prima facie case was
evidence that the Respondent knew of Guss’ and
Groenwoldt’s union activities. As he found no evi-
dence of knowledge, the judge concluded that he was
constrained to dismiss these 8(a)(3) and (1) allega-
tions.20 Relying on Pizza Crust Co., 286 NLRB 490
(1987), the judge found that although the Respondent’s
asserted grounds for firing Guss and Groenwoldt were
‘‘incredible,’’ Guss and Groenwoldt intentionally kept
their union activities covert and there was no evidence
that the Respondent had learned of these activities. The
judge also distinguished Abbey’s Transportation Serv-
ices, 284 NLRB 698 (1987), enfd. 837 F.2d 575 (2d
Cir. 1988), on which the General Counsel relied. The
judge found that in Abbey’s Transportation, supra: (1)
the employees’ union activities were more substantial
than Guss’ and Groenwoldt’s; (2) the employees did
not attempt to shield these activities; and (3) the em-
ployees were jointly terminated promptly after engag-
ing in protected activity. Although the judge acknowl-
edged that Guss and Groenwoldt were terminated one
after the other on April 17, both in Cardamone’s of-
fice, he found that that was coincidental. He found that
Guss and Groenwoldt were discharged for different
reasons and that Guss would not have been terminated
on the same day as Groenwoldt had he not lost picking
tickets on that date, and had Guss not requested to go
to Cardamone’s office.
D. Exceptions
The General Counsel and the Charging Party except
to the judge’s recommended dismissal of the 8(a)(3)
allegations. The General Counsel contends that, as in
Abbey’s Transportation, supra, the Board should infer
from all of the circumstances that the Respondent
knew of Guss’ and Groenwoldt’s protected union ac-
tivities and find that the Respondent unlawfully termi-
nated them for this reason. The General Counsel dis-
tinguishes Pizza Crust, supra, stating that it was liti-
gated under a ‘‘small plant’’ theory, not here alleged.
The General Counsel further asserts that, unlike Pizza
Crust, supra, where there was no evidence of antiunion
animus, here Respondent’s vice president, Cato, had
made virulent unlawful threats to employees in Feb-
ruary and March preceding the discharges, and that the
Respondent further demonstrated its animus through
the March 20 memo requesting employees not to sign
union authorization cards. Finally, the General Counsel
argues that unlike in Pizza Crust, supra, Guss’ and
Groenwoldt’s union activities were not covert. Thus,
although Guss and Groenwoldt told the Union on April
13 that they did not want the Respondent to know
about their union activities, the General Counsel argues
that they nonetheless openly demonstrated union sup-
port. The General Counsel notes that Guss publicly re-
quested information from Cato about union benefits at
an employee meeting, openly discussed the Union with
1253MONTGOMERY WARD & CO.
21 In Raysel-IDE, Inc., 284 NLRB 879, 880 (1987), the Board
found that timing alone was an insufficient basis for inferring knowl-
edge.
many employees at work, and passed out authorization
cards to coworkers. The General Counsel also contends
that Groenwoldt accepted literature from the Union
outside the facility and openly discussed the Union
with employees at work. Indeed, argues the General
Counsel, both Guss and Groenwoldt testified that they
had curtailed their union activities precisely because of
increased supervisory presence in their work area and
because they had concluded that they were being
watched.
The General Counsel additionally argues that given
the pretextual nature of the Respondent’s asserted rea-
son for discharging Guss and Groenwoldt, the Board
should infer that its actual motive was hostility to-
wards their union activities. Whitesville Mill Service
Co., 307 NLRB 937 (1992); De Jana Industries, 305
NLRB 845 (1991).
The Respondent cross-excepts, disputing the judge’s
credibility resolutions, and arguing that it did not dem-
onstrate antiunion animus. The Respondent contends
that Guss and Groenwoldt were not discriminated
against, and that the judge improperly rejected evi-
dence concerning other discharged probationary em-
ployees.
We reject the Respondent’s cross-exceptions and
find, for the reasons fully stated by the judge, that it
discriminated against Guss and Groenwoldt in dis-
charging them. Although the judge found that the Re-
spondent ‘‘discriminated’’ against the two employees
in discharging them, he nonetheless found no violation.
We disagree. We recognize that the term ‘‘discrimina-
tion,’’ in context, means only that the two employees
were treated differently from other employees. In order
to establish a violation of Section 8(a)(3), it must be
shown that the Respondent treated them differently be-
cause of their union activities. In the judge’s view, this
showing was not made because the General Counsel
never showed that the Respondent knew of the union
activities of these two employees. As set forth below,
however, we agree with the General Counsel and the
Charging Party that the evidence warrants the infer-
ence that the Respondent knew of Guss’ and Groen-
woldt’s union activities and, accordingly, that their dis-
charges were unlawfully motivated.
E. Analysis
Initially, we agree with the judge that a prerequisite
to establishing that Guss and Groenwoldt were wrong-
fully discharged is finding that the Respondent knew
of their union activities. Mack’s Supermarkets, 288
NLRB 1082, 1101 (1988). This ‘‘knowledge’’ need
not be established directly, however, but may rest on
circumstantial evidence from which a reasonable infer-
ence of knowledge may be drawn. Greco & Haines,
Inc., 306 NLRB 634 (1992); Dr. Frederick
Davidowitz, D.D.S., 277 NLRB 1046 (1985); Coca-
Cola Bottling Co. of Miami, 237 NLRB 936, 944
(1978). Indeed, the Board has inferred knowledge
based on such circumstantial evidence as: (1) the tim-
ing of the allegedly discriminatory action; (2) the re-
spondent’s general knowledge of union activities; (3)
animus; and (4) disparate treatment. Greco & Haines,
supra; E. Mishan & Sons, 242 NLRB 1344, 1345
(1979); General Iron Corp., 218 NLRB 770, 778
(1975). The Board additionally has relied on factors in-
cluding the delay between the conduct cited by the re-
spondent as the basis for the discipline and the actual
discharge, and—in the case of multiple discrim-
inatees—that the discriminatees were simultaneously
discharged. See, e.g., Darbar Indian Restaurant, 288
NLRB 545 (1988); Abbey’s Transportation Services,
supra.
Finally, the Board has inferred knowledge where the
reason given for the discipline is so baseless, unreason-
able, or contrived as to itself raise a presumption of
wrongful motive. Whitesville Mill Service Co., supra;
De Jana Industries, 305 NLRB at 849; Shattuck Denn
Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir.
1966). Even where the employer’s rationale is not pat-
ently contrived, the Board has held that the ‘‘weakness
of an employer’s reasons for adverse personnel action
can be a factor raising a suspicion of unlawful motiva-
tion.’’ See generally General Films, 307 NLRB 465,
468 (1992).
The factors on which the Board relies when infer-
ring knowledge do not exist in isolation, but frequently
coexist.21 For example, in BMD Sportswear Corp., 283
NLRB 142, 142–143 (1987), enfd. 847 F.2d 835 (2d
Cir. 1988), the Board reversed the judge and found
that the General Counsel had established that alleged
discriminatees were unlawfully laid off, even in the ab-
sence of direct evidence that the employer knew of
their union activities. There the respondent had dem-
onstrated antiunion animus, discriminated against other
employees, proffered unsubstantiated reasons for the
layoff, and the layoffs were proximate to the start of
the union organizing campaign. See also Active Trans-
portation, 296 NLRB 431, 432 (1989), enfd. 924 F.2d
1057 (6th Cir. 1991).
Applying the above criteria, we find, contrary to the
judge, that compelling circumstantial evidence warrants
the inference that the Respondent knew of Guss’ and
Groenwoldt’s union activities, and that it discharged
them because of those activities in violation of Section
8(a)(3) and (1).
Initially, we note that, unlike Pizza Crust, supra,
there is ample evidence here that the Respondent knew
generally of the Union’s organizing efforts. Even be-
fore the Respondent opened the Brandywine facility, it
1254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 Although we find that the Respondent’s March 20 memo to em-
ployees, urging them not to sign authorization cards, is evidence that
the Respondent generally knew of the Union’s organizing campaign,
we reject the General Counsel’s argument that it additionally evi-
dences the Respondent’s antiunion animus.
23 This case is also distinguishable from Goldtex, Inc. v. NLRB, 14
F.3d 1008 (4th Cir. 1994), in which the Fourth Circuit recently re-
versed the Board’s inference that the respondent knew that the em-
ployees it discharged had engaged in union activities. In Goldtex, the
court found no evidence that two of the discriminatees even sup-
ported the union—much less that the respondent knew of this sup-
port. As to a third alleged discriminatee, the court found that his
only expression of union support was too attenuated, as it predated
his discharge by nearly 2 years. Here, in sharp contrast, Guss and
Groenwoldt engaged in union activities within days of their dis-
charge.
24 Indeed, at the hearing, the Respondent’s attorney asked Guss
whether he and Groenwoldt exchanged ‘‘high fives’’ in the Re-
spondent’s parking lot immediately after their discharges, illustrating
both the Respondent’s ability and tendency to monitor its employees,
in and outside its facility.
25 Indeed, in Abbey’s Transportation, supra, there was no evidence
of antiunion animus, which we find clearly established by direct evi-
dence in this case.
was aware that the Union had commenced an organiz-
ing campaign. In response to this campaign, the Re-
spondent held meetings with its newly hired employ-
ees, telling them that they did not need union represen-
tation, and wrote employees in March urging them not
to sign authorization cards that the Union was distrib-
uting.
When urging its employees to eschew union rep-
resentation, the Respondent also displayed strong
antiunion animus at its highest corporate levels. Cato
graphically threatened employees that it would be fu-
tile to select the Union, stating that the Union would
come in ‘‘over his dead body,’’ and that there ‘‘would
be blood on the floor’’ before the Union came in. Sig-
nificantly, Schmitt and Cardamone, the Brandywine of-
ficials responsible for discharging Groenwoldt and
Guss, attended the meetings where their superior, Vice
President Cato, voiced this vehement, unlawful,
antiunion animus.22
Next, the evidence establishes that Guss and
Groenwoldt engaged in protected union activities at the
Brandywine facility. Guss openly solicited 18 to 24
employees at work to attend the April 13 union meet-
ing, and both he and Groenwoldt attended this meet-
ing. Although Guss and Groenwoldt told the Union
that they did not want the Respondent to learn of their
union activities, we agree with the General Counsel
that Pizza Crust, supra, is distinguishable. In Pizza
Crust, supra, the alleged discriminatees were instructed
by the union to keep their organizing activities covert,
the employees attempted to heed these instructions,
and, indeed, the employees had no evidence that super-
visors observed their union activities. Here, notwith-
standing their April 13 statements to the Union, Guss
and Groenwoldt thereafter talked to employees about
the Union in the lunchroom and parking lot, and urged
employees to sign authorization cards. Indeed, only
after Guss spoke with 18 to 20 employees at work and
distributed 6 to 8 cards, and after Groenwoldt talked
to 6 or 7 employees, did they halt these activities, tell-
ing the Union that more supervisors were in the work
area and that they felt that they were being watched.23
Significantly, unlike Pizza Crust, supra, the Re-
spondent also has the technology to watch, and does
watch, employees throughout its facility. Plant Man-
ager Schmitt testified that the Respondent maintains a
closed-circuit television system which monitors the en-
tire facility, inside and out, except restrooms and of-
fices. Schmitt admitted that he frequently watched em-
ployees on the monitor in his office; indeed, it was
Schmitt’s observation of Groenwoldt which the Re-
spondent cites as a basis for his discharge. Further,
Guss’ and Groenwoldt’s union activities occurred in
areas the Respondent can, and does, monitor.24
We find that the timing of Guss’ and Groenwoldt’s
discharges further supports an inference that their ter-
minations were unlawfully motivated. Abbey’s Trans-
portation, supra. Thus, within a few days after Guss
and Groenwoldt solicited coworkers to support the
Union, both employees—the only two organizing on
the Union’s behalf—were discharged on the same day,
one immediately after the other. Id. The judge distin-
guished this case from Abbey’s Transportation, supra,
noting that there the Board relied heavily on the fact
that the discriminatees were called into the respond-
ent’s office at the same time and discharged virtually
simultaneously. We do not find that these facts mean-
ingfully distinguish Abbey’s Transportation, supra,
from this case. Thus, in both cases, the leading em-
ployee organizers (indeed, here, the only union orga-
nizers) were discharged ostensibly for different rea-
sons, promptly after engaging in union activities, and
the terminations were handed down by the same per-
son, if not literally simultaneously, at least virtually
so.25
Finally, we agree with the judge that the Respond-
ent’s proffered reasons for discharging Guss and
Groenwoldt were pretextual. With regard to Guss, we
note particularly that before his union activities, his
work and production levels had not been questioned.
Indeed, Guss was frequently praised by his supervisor,
was offered overtime more often than most warehouse
employees, and his supervisor acknowledged that his
production levels were satisfactory. It was not until
Guss solicited employees on behalf of the Union that
the Respondent discharged him, relying on: (1) a pick-
ing ticket that Guss purportedly had lost 3 weeks ear-
lier—which it had never brought to Guss’ attention; (2)
Guss’ repeated failure to follow his leadperson’s direc-
tions—which allegation the judge discredited; and (3)
Guss’ losing two picking tickets on April 17, for
1255MONTGOMERY WARD & CO.
26 We do not agree with our dissenting colleague that the judge
‘‘chose not to credit’’ Groenwoldt’s testimony concerning the ob-
servable practices of other employees with respect to scanning out-
side the square. Groenwoldt was a witness whom the judge generally
credited, even when his testimony conflicted with that of the Re-
spondent’s witnesses. That the judge did not make an express credi-
bility finding concerning this particular testimony of Groenwoldt in
no way implies that he found Groenwoldt unbelievable. In view of
the absence of squarely conflicting testimony, we believe we are en-
titled to rely on what Groenwoldt described as the practices of his
fellow employees. 27 Abbey’s Transportation, supra.
which the Respondent engaged in an ‘‘extraordinary
exercise in case-building’’ in order to justify Guss’
discharge. As to Guss’ lost tickets, the judge found,
and we agree, that it is ‘‘incredible’’ for the Respond-
ent to argue that lost picking tickets were a chronic
problem, requiring at least twice weekly meetings, but
that Guss was the only employee who had ever been
detected losing tickets. Finally, we note that Guss’
own supervisor admitted that his firing was ‘‘bullshit.’’
As to Groenwoldt, we find that the Respondent
would not have discharged him for failing to observe
the scanning-in-the-squares requirement were it not for
his recent union activities, because his testimony and
the evidence concerning the Respondent’s pervasive
television monitoring system support the inference that
the discharge amounted to disparate treatment. Groen-
woldt testified that after meetings at which the em-
ployees had been advised about the scanning policy, he
observed other employees scanning in the squares only
about 50 percent of the time, as he was doing. All of
the employees worked under the eye of the Respond-
ent’s surveillance cameras, because Schmitt, the Re-
spondent’s Brandywine manager testified that he has a
television monitor in his office that permits him to see
‘‘anywhere within the building, inside and out, except
the office area and the restrooms.’’ In presenting
Schmitt as a witness, the Respondent did not seek to
elicit from him any testimony denying Groenwoldt’s
testimony concerning the scanning patterns of other
employees. In sum, in finding disparate treatment, we
do not rely solely on the lesser discipline given to Tate
(a warning) for scanning outside the squares.26
Furthermore, we find that the events occurring on
the day Groenwoldt was discharged were indicative of
a setup. When he first came in that day, the Respond-
ent arranged in advance for him to meet with Operat-
ing Manager Cardamone after his shift. He was then
assigned to the busy lanes, in which he would be
caught between the requirement to scan quickly so as
to avoid backups which triggered the red light and the
requirement to move large items over to the red
squares and scan them there, which was more time-
consuming than scanning in the shipping lanes. Then
Brandywine Manager Schmitt just ‘‘happened to ob-
serve’’ Groenwoldt scanning in the shipping lanes and
ordered his immediate termination, which Cardamone
conveyed to him at the prearranged meeting after his
shift. We do not agree with our dissenting colleague
that the impact of the Respondent’s assignment of
Groenwoldt to busier shipping lanes on the day of his
discharge is somehow beyond our purview in analyz-
ing the motive for the discharge simply because the
General Counsel failed to allege the assignment as a
separate unfair labor practice. The assignment is part
of the res gestae of the discharge under the General
Counsel’s theory. In other words, we are not—as our
dissenting colleague seems to imply—expressing our
approval of any employee’s willful failure to follow in-
structions. We are simply finding, considering all the
relevant evidence, that the Respondent discharged
Groenwoldt for a work error that it had reason to know
was committed by other employees, and it singled him
out for discharge for this failure because of his recent
onsite solicitation of fellow employees to sign union
authorization cards.
In sum, under the ‘‘confluence of circumstances’’27
in this case, including the facts that the Respondent
knew of the Union’s organizing campaign, responded
with unlawful antiunion animus, and discharged Guss
and Groenwoldt for ‘‘incredible’’ reasons promptly
after both employees engaged in union activities at
work, we infer that the Respondent knew of their
union activities. Under these facts, we reverse the
judge and find that the General Counsel made out a
prima facie case that Guss and Groenwoldt were un-
lawfully discharged. Further, because the judge prop-
erly rejected the Respondent’s purported rationale for
discharging both employees, we find that the Respond-
ent failed to establish that it would have discharged
Guss and Groenwoldt even in the absence of their
union activities. NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983). Accordingly, we find that
the Respondent violated Section 8(a)(3) and (1) by dis-
charging Guss and Groenwoldt.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent, by its agents, violated Section
8(a)(1) by telling employees that the Union would
come in ‘‘over [its] dead body,’’ and that there would
be ‘‘blood on the floor before the Union came in,’’
thereby implying that it would futile for the employees
to select union representation.
4. The Respondent violated Section 8(a)(3) and (1)
by terminating Dennis Guss and Paul Groenwoldt on
1256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
28 If this 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.’’
April 17, 1992, because they engaged in union or other
protected activities.
5. These unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent engaged in cer-
tain unfair labor practices, we shall order that it cease
and desist and take certain affirmative action designed
to effectuate the policies of the Act. We shall order the
Respondent to make whole Dennis Guss and Paul
Groenwoldt for any loss of earnings and other benefits
they suffered as a result of unlawfully terminating
them. F. W. Woolworth Co., 90 NLRB 289 (1950). In-
terest is to be computed in the manner prescribed in
New Horizons for the Retarded, 283 NLRB 1173
(1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Montgomery Ward & Co., Incorporated,
Brandywine, Maryland, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Implying to employees that it will be futile for
them to select union representation.
(b) Discharging employees because they engaged in
union or other protected activities.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Dennis Guss and Paul Groenwoldt imme-
diate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
(b) Make Dennis Guss and Paul Groenwoldt whole
for any loss of earnings and other benefits suffered as
a result of the discrimination against them, with inter-
est, in the manner set forth in the remedy section of
this decision.
(c) Remove from its files any reference to the un-
lawful discharges and notify Guss and Groenwoldt in
writing that this has been done and that the discharges
will not be used against them in any way.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Post at its Brandywine facility copies of the at-
tached notice marked ‘‘Appendix.’’28 Copies of the
notice, on forms provided by the Regional Director for
Region 5, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER COHEN, dissenting in part.
I agree with my colleagues that the Respondent vio-
lated Section 8(a)(1) by indicating to employees that it
would be futile for them to select union representation.
I additionally agree, under the circumstances of this
case, that the Board properly inferred that the Re-
spondent had knowledge of employee Dennis Guss’
union activities, that the General Counsel established a
prima facie case that Guss’ discharge was unlawful,
and that the Respondent failed to establish that it
would have discharged Guss even in the absence of
these union activities. NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983). Unlike my col-
leagues, however, I would not find that the discharge
of employee Paul Groenwoldt violated Section 8(a)(3)
and (1) of the Act.
As a result of substantial inventory losses due to
unscanned merchandise, the Respondent instituted a re-
quirement in the spring of 1992 that its ‘‘loader’’ em-
ployees scan large merchandise in red squares adjacent
to the loading bays. The Respondent trained its loaders
in this procedure, and reminded them almost daily of
this requirement. Groenwoldt, like the Respondent’s
other loaders, was trained in the new procedure and in-
structed to scan in the red box. Notwithstanding these
instructions, which Groenwoldt admits receiving, he
failed to scan in the box at least half of the time. Even
after Operating Manager Cardamone warned him on
April 15 to follow proper scanning procedure, Groe-
nwoldt continued to disregard the Respondent’s direc-
tive about 50 percent of the time. Significantly, al-
though Groenwoldt testified that he knew that the
lanes to which he was assigned on April 17 could be
monitored by the Respondent’s closed-circuit camera
system, he persisted in improperly scanning outside the
square.
1257MONTGOMERY WARD & CO.
Assuming arguendo that the General Counsel estab-
lished a prima facie case as to Groenwoldt, I believe
that the Respondent established that Groenwoldt would
have been discharged in any event for failing to scan
properly. My colleagues concede that Groenwoldt en-
gaged in this conduct. They seek to avoid the con-
sequences of this concession by claiming ‘‘disparate
treatment.’’ In this regard, they assert that the Re-
spondent knew that other employees similarly scanned
outside the ‘‘square’’ but did not discipline them. I
find this inference unsupported. Significantly, the
judge—whose credibility resolutions my colleagues
adopt—chose not to credit Groenwoldt’s uncorrobo-
rated claims that other employees scanned outside the
square. Instead, the judge concluded that ‘‘even if’’
Groenwoldt’s claims were correct, his persistent failure
to follow the Respondent’s repeated scanning instruc-
tions ‘‘was totally without justification.’’
My colleagues further argue that disparate treatment
should be inferred because Facility Manager Schmitt
did not deny Groenwoldt’s testimony that other em-
ployees also scanned outside the square. However,
Schmitt testified, without contradiction, that there were
two occasions where he observed that an employee
failed to scan in the square. Groenwoldt was the cul-
prit each time. After the first instance, Schmitt in-
structed Cardamone to remind Groenwoldt of the prop-
er procedures. Only 2 days later, Schmitt observed
Groenwoldt ignoring these specific, personal instruc-
tions by repeatedly scanning outside the square.
Schmitt, therefore, ordered Groenwoldt discharged. Fi-
nally, Operating Manager Cardamone, who frequented
the loading areas, testified that the only two employees
he ever observed scanning outside the square were
Groenwoldt and Tate, whom Cardamone warned.
Based on the above evidence, as well as the fact that
the judge, who personally observed all the witnesses,
was unwilling to find disparate treatment as to
Groenwoldt, I cannot accept my colleagues’ inference.
My colleagues also argue that Groenwoldt was treat-
ed differently from employee Tate. I disagree. Unlike
the situation with Tate, the Respondent had previously
apprised Groenwoldt about the importance of scanning
in the red box. Despite this, he repeatedly refused to
follow the Respondent’s instructions.
My colleagues contend that the Respondent ‘‘set
up’’ Groenwoldt for the discharge. Essential to this
setup theory is the notion that the Respondent, for un-
lawful reasons, assigned Groenwoldt to the busy lanes
where he would be more prone to fail to scan. How-
ever, the General Counsel does not allege that this as-
signment was for unlawful reasons. Thus, the essential
underpinning for the setup theory is not even alleged.
Based on the above, I would dismiss the allegation
that Groenwoldt’s discharge violated Section 8(a)(3)
and (1).
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 has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT represent to our employees that it
would be futile for them to select the Union as their
bargaining representative.
WE WILL NOT discharge or discriminate against any
employee because of that employee’s activity on be-
half of Warehouse Employees Local Union No. 730 of
the Metropolitan Area of Washington, D.C. and Vicin-
ity a/w International Brotherhood of Teamsters, AFL–
CIO or any other union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Dennis Guss and Paul Groenwoldt
immediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equiv-
alent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed and
WE WILL make them whole for any loss of earnings
and other benefits resulting from their discharge, less
any net interim earnings, plus interest.
WE WILL notify Dennis Guss and Paul Groenwoldt
that we have removed from our files any reference to
their discharges and that the discharges will not be
used against them in any way.
MONTGOMERY WARD & CO., INCOR-
PORATED
Angela S. Anderson, Esq., for the General Counsel.
Alexandra M. Goddard, Esq., of Chicago, Illinois, for the
Respondent.
Elizabeth J. Head, Esq., of Washington, D.C., for the Charg-
ing Party.
1258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1991, unless otherwise indicated.
2 The fact that the alleged discriminatees were probationary em-
ployees is essentially irrelevant; probationary employees are fully
protected under the Act; moreover, the Board has recognized that
probationary employees are sometimes selected for unlawful dis-
crimination because they are the employees who are the most osten-
sibly vulnerable. Electro-Wire Truck Products, 305 NLRB 1015
(1991).
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. This case
under the National Labor Relations Act (the Act) was tried
before me in Washington, D.C., on September 28–29, 1992.1
The case was initiated by a charge that was filed on April
28 by Warehouse Employees Local Union No. 730, of the
Metropolitan Area of Washington, D.C. and Vicinity a/w the
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL–CIO (the Union)
against Montgomery Ward & Co., Incorporated (the Re-
spondent). The charge was docketed as Case 5–CA–22686.
On June 12, on the basis of the charge, the General Counsel
of the National Labor Relations Board (the Board) issued a
complaint alleging certain violations of Section 8(a)(1) and
(3) of the Act by the Respondent. Respondent filed an an-
swer admitting that this matter is properly before the Board,
and admitting the status of certain supervisors under Section
2(11) of the Act, but denying the commission of any unfair
labor practices.
The substantive allegations of the complaint are that, at its
distribution center, or warehouse, at Brandywine, Maryland
(the Brandywine facility) Respondent: (1) in violation of
Section 8(a)(1), in March, by its executive vice president for
logistics and product service, Tommy Terell Cato, made
threats to all Brandywine facility employees; and (2) in vio-
lation of Section 8(a)(3), on April 17, Respondent discharged
employees Paul Groenwoldt and Dennis Guss because of
their activities on behalf of the Union. The threats are de-
nied. The April 17 discharges are admitted; however, Re-
spondent denies knowledge of any union activities by
Groenwoldt and Guss before their discharges. Respondent
further contends that Guss and Groenwoldt were each dis-
charged solely because they were probationary employees
who did not have satisfactory job performance.2
I. JURISDICTION
As the answer admits, Respondent is a corporation that is
engaged in the retail sale of merchandise. During the year
preceding the issuance of the complaint, in the course of its
retail operations, Respondent derived gross revenues in ex-
cess of $500,000; during the same period it sold and shipped
from its Brandywine facility products, goods, and materials
valued in excess of $5000 directly to purchasers located at
points outside Maryland. On these admissions I find and con-
clude that Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
As the answer further admits, I find and conclude that the
Union is a labor organization under Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. Respondent’s operations
Almost everything that is sold in Montgomery Wards’
stores is, at one time or another, stored in one of Respond-
ent’s 21 distribution centers throughout the United States.
The Brandywine facility is one of Respondent’s newer dis-
tribution centers, having been constructed in 1991. The Bran-
dywine facility initially opened in January, but it did not be-
come fully operational until April. The Brandywine facility
is a 600,000-square-foot building that has 200 loading bays.
About 200 employees were employed at the building at time
of trial.
The Brandywine facility services 39 of Respondent’s
Washington, D.C. area retail stores and other stores in the
mid-Atlantic States; for those stores it receives and stores
(for at least 1 day) a $25 million inventory. It ships the mer-
chandise to the stores on order, and it bills the stores accord-
ing to its records of what is shipped. Also, the retail stores
use copies of the distribution center’s shipping records to
audit their individual inventory records.
The management of each of Respondent’s 21 distribution
centers report to Cato. The 21 distribution centers and 150
product centers employ between 6000 and 7000 employees;
additionally there are 150 product centers that are Cato’s re-
sponsibility, as well as various quality assurance and data
processing facilities in the United States. Cato’s office is at
corporate headquarters in Chicago.
James Schmitt, whose office is at the Brandywine facility,
is the corporate distribution facility manager for the eastern
United States; he reports directly to Cato. Schmitt is also the
manager of the Brandywine facility. Reporting directly to
Schmitt at the Brandywine facility are an engineering man-
ager and two operating managers, one of whom is Mike
Cardamone. Cardamone is responsible for the day-to-day op-
erations of the Brandywine facility; among those reporting
directly to Cardamone are Jeff Gotshall, the shipping man-
ager, and Todd Lennox, the order-filling manager.
There was a 90-day probationary period for all employees
at the Brandywine facility; Groenwoldt, a loader, was hired
on February 21; Guss, a warehouseman, was hired on Feb-
ruary 24.
2. Initial union activities and alleged threats
In January and February, nonemployee organizers for the
Union distributed flyers in the area of the parking lot at the
Brandywine facility.
Groenwoldt testified on direct examination that, shortly
after he was hired, Cato conducted a meeting of all Brandy-
wine facility employees. After telling the employees that he
was pleased about the progress made in opening the new dis-
tribution center, Cato talked about third-party representation
of the employees. According to Groenwoldt: ‘‘He said we
didn’t need it there, that all differences we could sort out
amongst ourselves.’’
Groenwoldt further testified on direct examination that, in
mid-March, Cato conducted a series of group meetings with
1259MONTGOMERY WARD & CO.
3 In many of the long quotations that follow, I have, without nota-
tion, inserted punctuation and omitted extraneous expressions such as
‘‘like,’’ ‘‘you know’’ and ‘‘okay.’’
4 The transcript, p. 97, L. 12, is corrected to change ‘‘house’’ to
‘‘have.’’ 5 Respondent calls employees ‘‘associates.’’
the employees of the different departments. According to
Groenwoldt:3
He [Cato] was comparing Union wages versus Bran-
dywine wages, or Montgomery Ward’s wages at the
Brandywine facility, and he said that there wasn’t much
difference. He started talking about the authorization
cards.
[He said that] the employees need 30% to have4 an
election by the NLRB, and that management would
have a chance to see those cards to see if they had
enough.
He said that if he had anything to do with keeping
the Union out, he would, and that he does have some-
thing to do with it.
He said that there would be blood on the floor before
the Union came in.
Groenwoldt testified that Cato used a slide presentation as he
spoke to his group about comparative benefits.
Guss, without setting a date, testified on direct examina-
tion that he attended a meeting of all Brandywine facility
employees at which Cato spoke. Guss was asked, and he tes-
tified:
Q. And then what did he say?
A. He was glad to be here; how is everybody doing,
and then he said, ‘‘We don’t need no other third
party.’’
Q. Is this Cato or Cardamone you are telling us
about?
A. Cato said, ‘‘We don’t need no other third party
come in here over my dead body.’’
(No party has made a motion to correct this last-quoted por-
tion of the transcript.)
Guss further testified on direct examination that he at-
tended a late-March meeting of the warehouse employees
that was conducted by Cato, Schmitt, and Cardamone. About
60 employees were present. There was a slide projector pres-
entation to show Montgomery Ward wages; one of the man-
agers said that the union wages were ‘‘about the same.’’ At
some point during the meeting, according to Guss, ‘‘I said,
‘Can I see some benefits on the Union,’ and he [Cato] didn’t
have them present; he couldn’t answer.’’
Respondent called Cato. Cato testified that in his earlier
meeting, when he spoke to all of the Brandywine facility em-
ployees at once, he told them that he appreciated the hard
work that they had been doing. Also according to Cato, he
told the employees that ‘‘the company does not believe in
third-party representation.’’ When asked, on direct examina-
tion, if he said anything else about third-party representation
at the first meeting, Cato replied, ‘‘I don’t recall.’’ Cato ac-
knowledged that he referred to ‘‘blood on the floor’’ during
his meeting with all employees, but he testified that he used
word as part of the phrase ‘‘blood, sweat and tears on the
floor’’; Cato further testified that he used that phrase ‘‘in the
context of the hard work that those associates5 had done over
the prior months.’’
Cato further testified that he held 10 to 12 meetings with
groups of employees later in the spring. He testified that the
purpose of the meetings was to explain the effect of signing
a union authorization card and to answer certain claims by
the Union. He used a slide projection show to compare bene-
fits that Respondent was providing at the Brandywine facility
with benefits under the Teamsters’ contract at Respondent’s
Baltimore distribution center. Cato testified that he told the
employees in the group meetings that authorization cards
were legal documents and that, if over 50 percent of the em-
ployees signed them, the employees would be represented by
the Union. Cato flatly denied telling the employees that Re-
spondent would learn the identity of the employees who
signed authorization cards. He did not deny telling any group
of employees that the Union would be kept out if he had
anything to do with it, as Groenwoldt testified.
On cross-examination Cato was referred to the group
meetings; he was asked, and he testified:
Q. Didn’t you, in fact, at least at some of these
meetings say that it would be over your dead body be-
fore the Teamsters came in there?
A. I don’t recall that.
Q. Might you have said that?
A. I do not recall that.
Lennox testified that he could not remember anything that
Cato said at the first meeting. Lennox denied that, during the
meeting which Cato conducted for the warehousemen, Cato
stated that Respondent would find out who had signed union
authorization cards, and Lennox denied that Cato said that
the Union would get in only over ‘‘my dead body.’’ Lennox
acknowledged that some of the employees in the group of
warehousemen asked questions of Cato and that Cato gave
answers. Lennox did not deny that Guss, who worked under
Lennox, asked for an exhibition of union benefits.
Schmitt was present at all meetings conducted by Cato,
and he was called to testify by Respondent, but he was not
asked by counsel for his recollection of Cato’s speeches.
When interrogated by the General Counsel pursuant to Rule
611(c) of the Board’s Rules and Regulations, Schmitt testi-
fied that he could remember nothing that Cato had said,
other than congratulating the employees on the hard work
that they had done.
Credibility Resolutions
Schmitt is an obviously intelligent man, and he has known
that these matters have been subject to charges since the
charges were filed. I believe that he used the ‘‘I don’t re-
member’’ dodge in an attempt to evade testifying about the
misconduct of Cato, the high corporate executive who was
his immediate boss.
Groenwoldt did not support Guss in Guss’ testimony that,
during the first meeting, the one that was attended by all em-
ployees, Cato made a reference to his ‘‘dead body.’’ How-
ever, neither Cato nor Schmitt denied it. (Cato, incredibly,
testified on cross-examination that he could not remember
such a remark during the later, group, meetings, but he was
1260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Hollingsworth did not testify.
not asked if he said such during the first, general, meeting.
Also, Lennox’s denial on this point was limited to what Cato
said during the meeting of the warehousemen, not what Cato
said in the first meeting to the entire employee complement.)
I credit Guss and find that Cato told the employees that the
Union would be recognized only over his ‘‘dead body.’’
Guss did not support Groenwoldt’s testimony that, during
the series of late-March group meetings, Cato told some em-
ployees that ‘‘there would be blood on the floor before the
Union came in.’’ However, it is to be noted Guss and
Groenwoldt would not have attended the same group meeting
because they worked in different departments (warehouse
and shipping). I do not believe that Cato attempted to emu-
late Sir Winston by employing a reference to ‘‘blood’’ (with
or without references to sweat or tears, or toil) to describe
the effort involved in getting the operation going. If Cato had
made such a dramatic remark, others (like Schmitt and
Cardamone) would have been called to support him; none
was. I credit Groenwoldt, and I find that during one of the
group meetings, Cato said that there would be blood on the
floor before the Union would be recognized at the Brandy-
wine facility.
Contrary to the evasiveness of Cato and Schmitt about the
‘‘blood’’ and ‘‘dead body’’ statements, Cato clearly and un-
equivocally, and credibly, denied stating to any employees in
any meeting that Respondent would be able to find out who
signed authorization cards.
3. Union activities of Guss and Groenwoldt
On April 13, at a local motel, Union Organizer Archie
Smith conducted the Union’s first (and only) meeting of em-
ployees; three Brandywine facility employees attended and
signed authorization cards at that meeting: Groenwoldt, Guss,
and Brian Hollingsworth. Guss, Groenwoldt, and Hollings-
worth took blank union authorization cards from Smith and
agreed to distribute them among Respondent’s employees.
Smith testified:
[T]hey were interested in working, as a committee, to
try to solicit other people, to pass out the authorization
cards, and when . . . we got to that point and they said
they were willing to do that, I . . . suggested to them
that before they do that, they let me write the company
a letter and let the company know that they were on
a committee, before . . . they went out and started . . .
soliciting cards, but they, for some reason, had a little
fear. They didn’t want the company to know, so I told
them it was their call . . . .
Smith complied with the employees’ wishes; no such letter
was sent.
During the next 3 days, Guss distributed some cards at
breaks and after work (in the parking lot), but was able to
get no employees to sign them. Groenwoldt did not distribute
any authorization cards, but he testified that he did talk to
some employees about the cards. Whether Hollingsworth dis-
tributed cards or talked to other employees about them is not
disclosed by the record.6
There is no direct evidence that any of Respondent’s su-
pervisors had knowledge of the attempts by Guss and
Groenwoldt to distribute union authorization cards or talk to
other employees about the Union, and the supervisors in-
volved here denied such knowledge.
4. Discharge of Groenwoldt
a. Events before April 17
Groenwoldt was a loader at the distribution center dock.
Each shipping department bay (also called a dock) is des-
ignated for a certain Montgomery Ward store that may be lo-
cated anywhere between Pennsylvania and North Carolina.
Each shipping lane that leads to a dock is similarly des-
ignated, i.e., the Waldorf lane leads to the Waldorf dock.
Clerks give order-fillers or warehousemen picking tickets
for the merchandise that is to be taken to the dock, either
by powered cart or by an overhead conveyer system. The
order-filler finds the merchandise and places a picking ticket
on it. The order-fillers take the larger merchandise to lanes
leading to the loading docks using the powered carts. The
order-fillers place smaller merchandise on an overhead con-
veyer system which takes it to the dock area.
If the loaders do not take merchandise from the overhead
conveyer as it passes by their assigned loading docks, the
merchandise continues to circulate through the system.
Sometimes this causes no immediate problem, but sometimes
the merchandise that is not removed backs up and fouls the
entire conveyer system. A red light turns on when this hap-
pens, and the loader, and anyone who can help him, is re-
quired immediately to get the blockage undone.
As noted, the order-fillers place picking tickets on the
merchandise before sending it, or taking it, to the shipping
lanes. On each picking ticket is a bar code that can be
scanned with an electronic ‘‘gun.’’ Loaders are required to
scan all picking tickets of all merchandise before placing it
in truck trailers. When a ticket is scanned, a record is elec-
tronically made of what has been drawn from the distribution
center’s storage and what is being sent to each retail store.
When the distribution center opened, loaders were allowed
to scan tickets of larger merchandise in the shipping lanes
where the order-fillers would drop it. Respondent experi-
enced some inventory control problems with that procedure,
so, about April 1, Respondent caused to be painted on the
docks, each at points proximate to points at which trailers
were backed for loading, red, 2-foot by 4-foot rectangles
(called ‘‘squares’’ by the witnesses). After the painting was
done, all loaders were instructed to stop scanning the mer-
chandise out in the shipping lanes; they were instructed to
take the merchandise from the shipping lanes to red rectan-
gles and scan the merchandise there. Then they are to take
the merchandise inside the trailer as they had done before.
Groenwoldt admitted receiving group and individual in-
structions by the supervisors regarding the red rectangles. On
direct examination he admitted attending a meeting on the
dock conducted by Cato, Schmitt, and Cardamone. Groen-
woldt was asked, and he testified:
Q. And what did they say?
A. They explained what the red square was for,
about putting merchandise on the square and scanning
it and placing it on the truck.
. . . .
1261MONTGOMERY WARD & CO.
7 Gottshall did not testify.
Q. And what did you do after the meeting, did you
utilize the red square?
A. Sometimes I did and sometimes I didn’t.
Q. Well, why didn’t you use the red square all the
time?
A. Well, if my lane was backed up, I wanted to get
my lane clear, so I scanned the big items out in the
lane, then put them on the truck. Sometimes I did use
it; sometimes I didn’t. It all depended on how backed
up my lane was. . . . [W]hen my lane gets backed up,
it just makes that much more work for me to get clear.
Groenwoldt further acknowledged that, a few days after this
group meeting, Schmitt and Cardamone approached him and
‘‘I was instructed on the use of the red square. . . . To [put]
all merchandise on the floor, to put [it] on the red square,
scan it and load it into the truck.’’ The General Counsel then
asked Groenwoldt if he thereafter followed these instructions.
Groenwoldt replied that he did not. Groenwoldt testified that
he continued to scan in the lanes ‘‘about 50% of the time’’
in order not to get behind and possibly having the red light
(on the conveyer system) come on. (As detailed below,
Cardamone acknowledged that he repeatedly cautioned the
loaders not to allow the red light to come on.)
Groenwoldt also testified that he saw other loaders use the
red rectangles ‘‘about 50% of the time.’’
There is no question that accurate scanning at the docks
is a matter of great importance to Respondent’s operations.
Groenwoldt testified that he knew that if the picking tickets
of loaded merchandise were not scanned, the distribution
center inventory would not be ‘‘relieved,’’ or debited, and
the retail store would not be charged; nor would the retail
store know that it had the merchandise.
Cardamone testified that during the first 6 months of its
operations, the Brandywine distribution center had 10 times
the level of unscanned labels that is normal for the Compa-
ny’s distribution centers, and a 6-month inventory revealed
that $300,000 of inventory loss was attributable to unscanned
labels. Cardamone testified, without contradiction, that he
regularly cautioned the loaders that they should always be
diligent in ‘‘making sure your red lights are off, which
means that your merchandise is flowing, making sure that
you’re that you’re scanning your merchandise in the red
square, and making sure that the red mark you put on your
bar code indicating that it was scanned is facing out when
you load it in the trailer so an auditor can check it.’’
Cardamone and Schmitt, the distribution center manager,
testified that early in the week of April 13, they were walk-
ing in the dock area and saw Groenwoldt scanning a large
piece of merchandise outside the red rectangle. Schmitt sent
Cardamone over to remind Groenwoldt of the proper proce-
dures. Cardamone testified, ‘‘I went directly over to him in
the back of the trailer where he [Groenwoldt] was and ex-
plained to him the procedure for loading, our program, how
serious the offense was.’’
Cardamone admitted on direct examination that, on April
12 or 13, he noticed one other loader, Izea Tate, who
‘‘scanned several items in his lane, not in the red square.’’
When asked what he did about it, Cardamone testified:
I reprimanded him [Tate]. I told him how serious
that was. I asked him if he understood our policies and
I told him what could happen if he continued.
I went over our policy, where to scan. I was being
very repetitious just to make point to him that he could
be terminated if this happens again.
I made it sound extremely serious to him.
Cardamone again testified on cross-examination that when he
saw Groenwoldt scanning in the shipping lane, he reminded
him of the proper procedure, and he asked Groenwoldt if he
understood his training, but he testified that he could remem-
ber nothing more about what he told Groenwoldt on that oc-
casion. It is clear that Cardamone gave to Groenwoldt no
warning similar to that which he had given Tate.
b. Events of April 17
Groenwold testified that, on the morning of April 17,
Loading Supervisor Gottshall took Groenwoldt from his
usual two loading docks and placed him at two others.
Gottshall further told Groenwoldt that, at the end of the day,
Cardamone wanted to see him.7 Groenwoldt further testified,
without contradiction, that the two docks to which he was as-
signed on April 17 had a greater volume of traffic than did
the two docks to which he was usually assigned. Groenwoldt
further testified that he knew at the time that the two docks
to which he was sent were subject to a surveillance by a
closed-circuit camera system; Groenwoldt testified that he
did not know if his usual docks were subject to surveillance.
The General Counsel asked Groenwoldt about the day he
was discharged, and Groenwoldt testified:
Q. And what did you do that day?
A. Loaded the trucks.
Q. Did you use the red square every time you were
supposed to?
A. No.
Q. About how frequently did you use the red square?
A. About 50% of the time.
Q. Did you observe the employees in the other lanes
around you when they were loading?
A. Yes.
Q. Did you see them using or not using the red
square?
A. They were using it sometimes; sometimes they
weren’t.
On cross-examination Groenwoldt admitted that he was busy
‘‘most of the time,’’ but he insisted, ‘‘You can look to your
left or your right, with a glance of your eye, and you can
see them.’’ Groenwoldt was not asked to name these other
employees.
At the end of the workday, Gottshall collected Groenwoldt
and took him to Cardamone’s office. Gottshall and
Groenwoldt entered Cardamone’s office as Guss was leaving
(after having been discharged, as discussed infra). When
Groenwoldt entered Cardamone’s office, Cardamone read to
him the following notice of discharge:
Paul [Groenwoldt] is being separated due to his re-
peated violation [sic] of tailgate scanning procedures.
On March 23, his supervisor covered the tail gate scan-
ning procedure with Paul. On April 15 at 2:45 p.m. Jim
Schmitt, facility mgr. and Mike Cardamone, operating
1262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The General Counsel does not allege that Schmitt’s surveillance
of Groenwoldt’s loading practices is a case where the employee’s
misconduct was discovered during an investigation undertaken be-
cause of the employee’s protected activities. Cf. Kut Rate Kid &
Shop Kwik, 246 NLRB 106, 121–122 (1979).
9 The transcript, p. 380, L. 14, is corrected to change the question
mark to a period.
mgr., observed Paul scan a high value master carton
and carry [it] to the trailer. The carton was scanned in
the lane and not in the designated red square. He was
instructed at that time by both Mr. Schmitt and Mr.
Cardamone as to the correct procedure. On April 16 a
meeting of all shipping associates was held (Paul was
in attendance) and the procedures of tail gate scanning
were reviewed. On April 17th, another trailer meeting
was held to cover the same topic. At 3:13 p.m. on April
17, Paul was observed by Mr. Jim Schmitt, loading
merchandise on his trailer without tailgate scanning.
This was repeated several times.
When Cardamone finished reading the notice, according to
Groenwoldt, ‘‘I told them that I would try and do a better
job, and he [Cardamone] told me, ‘‘No, you won’t.’’
Cardamone did not dispute Groenwoldt’s testimony of
what was said in the discharge interview, except that
Cardamone, credibly, added that, when reading the notice:
After each sentence, I paused and asked him
[Groenwoldt] if he understood it, if he had any ques-
tions about it, ‘‘do you agree or disagree,’’ and he
agreed to every sentence, sentence-by-sentence,
throughout the entire document. And I asked him to
sign it.
(Groenwoldt did sign the discharge notice, and he wrote
‘‘Teamsters’’ below his signature. Groenwoldt testified that,
after signing the notice, he ‘‘pushed’’ it back to Cardamone
and asked, ‘‘Is this the reason why I’m being fired?’’ When
asked what Cardamone replied, Groenwoldt testified, ‘‘It
sounded like ‘uh-huh,’ I’m not sure, though.’’ Whatever
sound he made, there is no evidence that Cardamone read the
word ‘‘Teamsters’’ before he made it. Moreover, assuming
that Cardamone was responding to Groenwoldt’s question in
the affirmative, it is at least equally inferable that Cardamone
was indicating that the reason listed on the warning notice
was the reason that Groenwoldt was being discharged.)
Schmitt testified that he has in his office a monitor for a
closed-circuit television security system. Schmitt testified that
he can see, ‘‘anywhere within the building, inside and out,
except the office area and the restrooms.’’ Further according
to Schmitt, on April 17:
I happened to observe that afternoon, Friday after-
noon, Mr. Groenwoldt not scanning in the red box. In
fact, I don’t know where he was scanning. . . . I said
to Mike [Cardamone], ‘Terminate Mr. Groenwoldt.’’’
Schmitt, who was presumably watching all loaders,8 was not
asked if, as Groenwoldt testified, other employees also
marked large merchandise outside the red rectangles on April
17.
Cardamone testified that, on receiving the order to dis-
charge Greenwoldt, he prepared the discharge notice quoted
above, called Groenwoldt and Gottshall into his office, and
discharged Groenwoldt, as described above.
The parties stipulated that the files of Groenwoldt contain
no records of any types of warnings; Groenwoldt testified
that Gottshall frequently told him that he was doing a good
job.
5. Discharge of Guss
a. Events before April 16
Guss was an order-filler, or warehouseman, at the Brandy-
wine distribution center. At the time of his discharge, there
were two group leaders working under Supervisor Lennox in
the warehouse: Ruth Culver and Pat Proctor.
Respondent contends that Guss was discharged on April
17 because: (1) he would not follow instructions issued by
Culver; (2) he was too slow in filling orders (or picking mer-
chandise); (3) he lost a picking ticket about 3 weeks before
he was discharged; and (4) on the day of his discharge, Guss
lost two more picking tickets.
Lennox testified that the approximately 16 order-fillers at
the distribution center fill 1500 to 3000 orders per day. A
clerical gives tickets to order-fillers, and an accounting of
how many pieces per hour each order-filler ‘‘pulls’’ is main-
tained. When an order-filler is given tickets, he is required
to put his initials on it.
Tickets do get lost. Lennox testified that he had been re-
minded on a daily basis, by an ‘‘unscanned label report,’’
that lost tickets were a problem. Lennox testified that when
lost tickets were found:
The general procedure was to bring it [a lost ticket]
to the supervisor which that ticket would have been as-
signed from, and then that supervisor [was] to follow
up on that ticket and try to identify who it belonged to
ensure that the merchandise was pulled, and then take
whatever steps [were] necessary to reinforce to associ-
ates the importance of the tickets.
Lennox testified that he conducts daily meetings of the order-
fillers, and ‘‘at least twice a week’’ he covers the topic of
lost picking tickets. In those meetings Lennox tells the order-
fillers to think of picking tickets as customers, and ‘‘that it
is the associate’s responsibility to keep track of the tickets
assigned to them.’’ Lennox further testified that, ‘‘on a daily
basis,’’ he and Cardamone discussed ‘‘[w]ays in which we
could identify who the tickets belonged to, how we could re-
duced that [unscanned label] report.’’9
Lennox testified that some 3 weeks before Guss was dis-
charged, a ticket bearing Guss’ initials was brought to him.
Lennox testified that he then told Guss ‘‘that he needed to
keep more control of the tickets . . . and that he was respon-
sible for his own tickets.’’
Lennox testified that he kept track of how many pieces per
hour each order-filler filled by adding up the number of tick-
ets given to them in a day, subtracting breaktimes, and divid-
ing by the number of hours that the order-filler was supposed
to be working. Statistics were not kept on an order-filler if
he was given any other assignments during the day. Lennox
testified that he had established a goal of 30 pieces per hour
1263MONTGOMERY WARD & CO.
for the order-fillers, and he told the order-fillers that in a
group meeting, but he acknowledged that ‘‘some’’ of the
order-fillers had not reached that speed in April 1992. Len-
nox testified that he thought Guss’ ‘‘pieces per hour were
lower than I thought was what he was capable of doing.’’
Lennox testified that, at some point, he determined that Guss
was picking 16.08 pieces per hour, but he should have been
picking 20 to 25 pieces per hour by that point.
Lennox also testified about the third area of alleged dif-
ficulty with Guss, Guss’ dealings with Culver. Culver be-
came a group head on March 30; prior to that date, she was
an order-filler, as was Guss. Lennox testified that, ‘‘on occa-
sion’’ Culver would indicate to him that ‘‘she was having
problems getting [Guss] to follow her instructions.’’ Lennox
told Culver to handle the problem ‘‘on her own level’’ be-
cause ‘‘if I intervened, I thought that might take away from
her status as group head. . . . I wanted her to use her own
style.’’ Lennox testified that he checked with Culver at some
point later, apparently before April 16, but: ‘‘she reported to
me that she was still having difficulty.’’
Culver testified that ‘‘I generally had to ask Dennis two
to three times to get a task performed.’’ When asked specifi-
cally how often this happened, Culver replied, ‘‘daily.’’ She
testified that she experienced that problem with none of the
other six order-fillers under her. Culver testified that ‘‘from
time to time’’ she told Lennox of the troubles she was hav-
ing with Guss; Lennox told her to talk to Guss herself, and
she did so. Culver was asked on direct examination, and she
testified:
Q. When did you have a talk with Mr. Guss?
A. I can’t give you an exact date.
Q. It was after you became a group head?
A. Yes, ma’am.
Q. And where you when you had a talk with Mr.
Guss?
A. In the warehouse, on the floor.
Q. Was anyone else present when you had this talk?
A. No.
Q. What did you say to Mr. Guss and what, if any-
thing, did he say to you?
A. I just explained to him that I wasn’t trying to be
hard-nosed with him, that we just needed to have the
merchandise brought up as close to the shipping lanes
as possible, to have it stacked neatly and safely, and
that when the items . . . were coming back from the
other stores, we needed to have them put away as
quickly as possible. . . . I don’t recall word for word,
but he [Guss] basically said that he would try to get it
done.
Q. Did any of the everyday work situations change
after that discussion?
A. No, ma’am.
Guss admitted that an exchange of this nature occurred, but,
as discussed later, he specifically placed it after a meeting
on April 16.
b. Events of April 16
Lennox testified that during the morning of April 16, the
day before the discharges, he called a meeting of Guss and
Culver in his office. According to Lennox:
I spoke with both of them about the problems that
were occurring. Ruth [Culver] was having trouble get-
ting Dennis [Guss] to do what she instructed him to do.
I put the issue out on the floor and asked them for
their comments. . . .
[Culver said that] she was having difficulty. She
would instruct him to do something and it seemed that
there was a lackadaisical attitude towards getting that
done. . . .
Mr. Guss said that he was helping other people in
the shipping department and that he had taken tickets
from other order-fillers.
I reminded him that it was his responsibility on the
productivity portion of it to make sure that the sign-out
clerk knew how many tickets he took from someone
and that it was not his responsibility to load trailers,
that it was his responsibility to pull orders.
Lennox testified that he told Guss during the meeting of
April 16, that Guss had been ‘‘pulling’’ 16.08 pieces per
hour, and that ‘‘I needed him to be pulling between 20 and
25 pieces per hour.’’
Lennox testified that he could not remember any response
by Guss to any comments that were made in the meeting,
other than the one quoted immediately above. Lennox further
testified that Culver left his office before Guss on April 16.
As Guss left the office, according to Lennox, ‘‘I told him
that I still hadn’t made a decision on what to do about this
matter.’’
Culver testified that in the April 16 meeting, Lennox told
Guss that
we all need to work together as a group, that I was his
group head, basically his right arm, and that we needed
to work together and get everything done in a timely
manner.
Culver testified that Lennox mentioned productivity sheets,
but she could not remember what was said.
Neither Lennox nor Culver testified that, during the meet-
ing of April 16, there was any mention of the picking ticket
that Guss had, as Lennox testified, lost about 3 weeks before.
c. Events of April 17
Guss admitted that, during the morning of April 17, he
misplaced two picking tickets. He testified that he was look-
ing for them when he was approached by Culver who handed
the tickets to him without comment. He then pulled the mer-
chandise and continued his other duties. Guss testified that,
within an hour of his quitting time on April 17, Culver asked
him to work overtime the next day. That testimony was not
denied.
Culver testified that on April 17 another employee found
two tickets that had been initialed by Guss and brought them
to her. Culver testified that she photocopied the tickets and
brought the originals and the copies to Lennox.
On cross-examination Culver was asked, and she testified:
Q. Can you tell me why you xeroxed the tickets that
were given to—the lost tickets?
A. That was also part of the procedure, the way I un-
derstood it, that they were to be copied and a copy was
to be given to [Lennox] and then he would handle the
1264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
disposition of the tickets, getting them back or reissued
to someone else for re-pull.
. . . .
Q. Had you made copies of other tickets previously?
A. If the tickets had identifiable initials, I believe I
had before, but I don’t—I cannot recall. Truthfully, no,
ma’am. I can’t recall ever.
Q. Have you ever found lost tickets before?
A. Yes, ma’am.
Q. How frequently?
A. It would differ from day to day. . . . Some days
you would find maybe one or two [that] would be
turned in and sometimes you could go a week and none
would be turned in.
Q. Are the order-fillers supposed to put their initials
on the tickets?
A. Yes, ma’am.
Q. And why would you have a ticket that didn’t
have initials on it?
A. Because some people don’t follow the rules all
the time.
. . . .
Q. Did you and [Lennox] ever discuss who was los-
ing the tickets?
A. For the tickets that were identifiable, we’d just
. . . remind the order-filler to be very careful with
them and to make sure all of them were filled.
Culver was asked to name some of the other order-fillers
who had been identified as having lost tickets. After two
rounds of evasive answers, Culver testified that she could not
remember.
After he got the copy (and/or the originals) of the picking
tickets, Lennox called Guss into his office. According to
Lennox:
I, again, reminded him of the importance of the tick-
ets and—I don’t recall exactly what was said in this
meeting, but I told him they were found on the floor
and that’s all I can remember, the gist of it.
As I shall discuss later, Lennox testified that immediately
after giving the picking tickets to Guss, he went to see
Cardamone.
At quitting time, Guss was paged to Lennox’s office.
When he got there, according to Guss, Lennox asked him to
step outside for a cigarette. When they finished their ciga-
rettes, they returned to Lennox’s office. Further according to
Guss:
He [Lennox] was shaking, and he said, ‘‘This is
from—the man up above. [Lennox] said, ‘‘I have to let
you go.’’
I’m like, ‘‘This is bull shit.’’
He goes, ‘‘I know it is bull shit, but the man up
above said I have to let you go.’’
Respondent does not dispute that the expression ‘‘the man up
above,’’ if used, was a reference to Cardamone; at any rate,
Guss and Lennox testified that, after being told that he was
discharged, Guss immediately asked if he could talk to
Cardamone, and Lennox did not ask Guss why he wanted to
do so.
Guss and Lennox then proceeded to the area of
Cardamone’s office. Lennox went into Cardamone’s office
and left Guss outside momentarily. Guss was then called in.
Guss testified that, in Cardamone’s office, he told
Cardamone that other employees had made some mistakes,
but they were given other chances; he mentioned specifically
an employee who had operated some machinery dangerously;
she was merely assigned to another machine. Guss asked
Cardamone why he could not have another chance like that
employee. Further according to Guss, Cardamone replied,
‘‘Nope, you’re gone, bye.’’
d. The decision to discharge Guss
Lennox testified on direct examination that, after someone,
whom he did not then name, brought him the two lost pick-
ing tickets on April 17, he went to Cardamone to discuss the
difficulties that he had been having with Guss. According to
Lennox:
Mr. Cardamone asked me questions as to what I
would want in my own operation, is this the kind of
person that I would want in my organization, questions
of that nature.
I smiled to him and I had made my decision that I
was going to terminate Mr. Guss.
Lennox further testified that, at the end of the workday, he
took Guss outside, ‘‘so that we would have some privacy.’’
Outside, Lennox told Guss that he had decided to terminate
Guss for three reasons which he also wrote on a discharge
memorandum: ‘‘failure to follow instructions, productivity,
[and] lost tickets.’’
Lennox testified that he and Guss returned to Lennox’s of-
fice where Guss said that there must be another reason for
the discharge, and that he wanted to talk to Cardamone about
his discharge. Lennox went to see Cardamone; Lennox told
Cardamone that he was terminating Guss and that Guss
wished to speak to Cardamone. When the three were in
Cardamone’s office, Cardamone read aloud a section of the
personnel manual that probationary employees may be termi-
nated for any reason. Lennox did not deny that when he,
Guss and Cardamone were in Cardamone’s office, Guss
asked for another chance to perform satisfactorily, as Guss
claimed in his testimony.
On cross-examination by the General Counsel, Lennox tes-
tified that it was Frances Robinson, a group head in the re-
shipment department, who brought Guss’ picking ticket to
him. When asked what he then did with the tickets, Lennox
replied, ‘‘I had Ruth Culver make a photocopy of them and
I brought them to Mr. Guss’ attention.’’
Although Lennox insisted at trial that it was his decision
to discharge Guss, on cross-examination by the Union Len-
nox acknowledged that his pretrial affidavit states:
It was ultimately Mr. Cardamone’s decision. . . .
After Mr. Cardamone told me we would discharge
Guss, I went and found Guss and took him outside.
Cardamone testified consistently with the direct examina-
tion of Lennox about how the decision to terminate Guss was
made (that it was Lennox’s idea, and Cardamone served only
as a sounding board). Cardomone acknowledged that, in his
office, Guss argued that other employees ‘‘were doing these
1265MONTGOMERY WARD & CO.
10 For possible purposes of review, I here state that I credit Guss’
testimony that Culver gave him the tickets without comment; and I
discredit Lennox’s testimony that he gave the tickets to Guss (but
could not remember what he said when he did so, although he had
previously told Guss, at the end of the April 16 meeting, in effect,
that termination was being contemplated).
11 See Alvin J. Bart & Co., 236 NLRB 242 (1978).
things and weren’t reprimanded for them.’’ Cardamone did
not deny that Guss asked for another chance, and that Guss
argued that other employees had been given such other
chances.
Credibility Resolutions
Lennox and Culver could not keep their stories straight
about how the tickets were found and the copies were made.
Culver testified that some other employee found the ticket
and brought them to her, and that she made copies, and then
gave them to Lennox, because she thought that was ‘‘the
procedure.’’ Lennox testified that Frances Robinson (appar-
ently an employee) found the tickets and gave them to him;
he gave them to Culver and told her to make copies; and he
gave the originals to Guss, but he could not remember what
he said to Guss when he did. Because Guss admitted the loss
of the picking tickets, a credibility resolution on the point is
not necessary. The conflict, however, demonstrates that there
was no ‘‘procedure’’ (‘‘general’’ or otherwise) that called for
making copies of picking tickets that had been found. The
conflict, however, demonstrates that Respondent was going
through an extraordinary exercise in case building when it
was documnenting Guss’ (admitted) error in losing the pick-
ing tickets.10
There is a substantial credibility conflict between Lennox
and Guss concerning what Lennox told Guss when he an-
nounced the discharge. Guss was credible in his testimony
that Lennox said that he knew that the discharge was (or the
stated reasons were) ‘‘bull shit,’’ but ‘‘the man upstairs,’’
i.e., Cardamone, had told him to discharge Guss. Moreover,
Guss’ testimony is perfectly consistent with Lennox’s state-
ments in his pretrial affidavit, which I credit,11 that Card-
amone ordered the discharge. I find that Lennox admitted to
that Cardamone had ordered Guss’ discharge, and the reasons
being given for it, were ‘‘bull shit.’’
Other Testimony
On cross-examination, Guss testified that he did not re-
member losing any tickets other than those he lost on April
17. (The General Counsel did not ask him if, in fact, he had
lost a ticket prior to April 17.)
Guss testified that ‘‘quite a few times’’ during his employ-
ment ‘‘Todd Lennox said I was doing a very good job.’’
Guss further testified that, about 3 weeks before he was ter-
minated:
He [Lennox] told me to work with this guy, the guy
that knocked over the ranges, 12 of them, and totalled
them, he had me—Todd said, ‘‘Would you work with
him today and let me know how he does?’’
Guss amended this statement by adding that the other em-
ployee ‘‘[k]nocked over 12 stoves and totaled half of them
because I picked them up.’’ None of this testimony was de-
nied by Lennox. Guss also testified that he was asked to
work overtime almost every week, and only a few employees
were ever asked to work overtime. Lennox and Kick testified
that almost all employees were asked to work overtime, and
they did so, but Respondent introduced no records in support
of that conclusionary testimony; I credit Guss.
On cross-examination Guss denied that Culver gave him
instructions on a daily basis. Guss testified that no one ever
told him that Culver was a group head, and he usually
worked under Proctor. Guss further testified that Culver gave
him instructions only ‘‘[a] couple of times.’’ One of these
times, according to Guss, was an instruction to return to
stock certain merchandise that had been returned from a
store; another was an instruction to stack merchandise higher
in the lanes. Guss testified that he complied with both in-
structions. I credit all of this testimony by Guss.
Guss also testified that, after the April 16 meeting, when
Lennox was not present:
She [Culver] came up to me and said, ‘‘You prob-
ably think I’m a bitch.’’
I said, ‘‘No, I don’t.’’
I said, ‘‘I’ll start stacking merchandise, but they’re
just going to tell me—
She said, ‘‘Okay, everything is fine.’’
I said, ‘‘It’s fine with me.’’
Although Culver testified that ‘‘I can’t give you an exact
date’’ of the conversation in which she told Guss that she
‘‘wasn’t trying to be hard-nosed with him,’’ it is obvious that
this conversation, as described and dated by Guss, is the
same conversation described by Culver. Culver knew that
Guss was discharged the next day, in part, for supposed mul-
tiple failures to follow her orders that preceded the April 16
meeting. And it is obvious to me that Culver gave con-
sciously false testimony when she testified that ‘‘I can’t give
you an exact date’’ of the conversation in which she and
Guss reached agreement about the future. I find that the con-
versation occurred after the meeting of April 16, as testified
to by Guss.
Guss further testified on cross-examination that it was only
once before April 16 that Lennox spoke to him about his
pieces per hour. Guss testified that he told Lennox that the
rate for which Lennox was giving him credit (about 16
pieces per hour), was ‘‘pretty good’’ because Todd also gave
him other things to do in addition to pull merchandise; also,
Guss told Lennox that Lennox’s figures did not take into ac-
count that many times, the equipment to which Guss was as-
signed was being used by other employees. Guss testified
that Lennox agreed with these observations about the pieces
per hour calculations for him. Lennox did not deny this testi-
mony.
Lennox testified that ‘‘I might take some [work] from
somebody else and give it to the order filler, leaving the re-
sponsibility for productivity to that order-filler to tell my
sign-out clerk so she could document it for them.’’ However,
Lennox did not testify that, at any time before April 16, he
told the order-fillers, Guss or any other order-filler, that he
was ‘‘leaving the responsibility’’ to them. Indeed, Lennox
testified to only one conference with Guss that concerned
pieces per hour, that of April 16.
As noted, Lennox testified that lost picking tickets had
been a chronic problem, even before Guss lost two of them
1266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Tr. 433.
on April 17. On cross-examination Lennox was asked, and
he testified:
Q. Did you make an attempt to do anything about
the lost tickets?
A. What I attempted to do was reenforce to the asso-
ciates that worked for me the importance of these tick-
ets and that they should regard them [each ticket] as a
customer.
Q. Were there occasions, other than the occasion in-
volving Mr. Guss, where lost tickets were found?
A. Tickets were found, but I was unable to identify
who they belonged to.
Q. On no occasion were you ever able to identify
who tickets belonged to that were found?
A. Not of the lost tickets, that’s correct, at that time.
JUDGE EVANS: You mean Guss’ tickets were the first
ones you were ever able to identify?
THE WITNESS: To identify, yes, sir.
JUDGE EVANS: Next question.
By Ms. Anderson:
Q. About how many lost tickets had been found up
to the time when Guss’s tickets were found?
A. I would say between 10 and 15 . . . total.
Respondent called Sandra Kick, a personnel specialist,
who testified that several probationary employees were ter-
minated in 1992 and that Hollingsworth (the third employee
who attended the April 13 union meeting) is still employed.
B. Analysis and Conclusions
1. The 8(a)(1) allegations
The complaint, paragraph 5, alleges that, in violation of
Section 8(a)(1), on or about March 9, Cato: (a) told the em-
ployees that Respondent would learn the identity of those
who signed union authorization cards; (b) told employees
that strikes and violence would inevitably result if they se-
lected the Union as their collective-bargaining representative;
and (c) told the employees that it would be futile for them
to select the Union as their collective-bargaining representa-
tive.
I have found above that Cato did not tell the employees
that Respondent would discover the names of those who
signed authorization cards. I have found that Cato told the
Brandywine facility employees that the Union would rep-
resent the employees only over his ‘‘dead body,’’ and that
there would be ‘‘blood on the floor’’ if the Union made the
attempt. While these remarks, by the ultimate supervisor of
over 7000 employees, bespeak of the rawest variety of
antiunion animus, they do not fall within the categories of
violations alleged, and, on brief, the General Counsel, does
not contend that they do.
Accordingly, I shall recommend dismissal of these 8(a)(1)
allegations of the complaint.
2. The 8(a)(3) allegations
The threshold issue is whether the General Counsel has
presented a prima facie case that Guss and Groenwoldt were
discriminated against because of their union activities; that is,
the Board must first decide whether the General Counsel has
shown that Guss and Groenwoldt have been discharged, that
Respondent bore animus against their union activities when
it discharged them, and that Respondent knew Guss and
Groenwoldt had engaged in union activities at the time of the
discharges. Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982);
approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983).
The discharges are admitted; animus has been found; the
issue is whether Respondent can be charged with direct, or
inferential, knowledge of the union activities of Guss and
Groenwoldt despite the fact that knowledge is denied.
As Union Organizer Smith testified, Guss and Groenwoldt
told him not to send a letter to Respondent identifying them
as members of an organizing committee because, ‘‘[t]hey
didn’t want the company to know.’’
At the hearing I asked counsel to brief me on the effect
of Pizza Crust Co., 286 NLRB 490 (1987). I noted on the
record that in that case, as here, the alleged discriminatees
sought to keep their union activities secret from their em-
ployer.12 In Pizza Crust, supra, as here, three employees
were the core inside organizers. As here, they determined to
keep their union activities secret, at least to the extent pos-
sible. Two of the three employees were discharged imme-
diately after distributing authorization cards for a union. The
administrative law judge, after extended discussion, found
that the grounds asserted for the discharge were ‘‘incred-
ible,’’ but he recommended dismissal of the 8(a)(3) allega-
tions because there was no evidence of animus or knowl-
edge. In his refusal to impute knowledge in the face of the
employer’s denials, the law judge relied on the fact that the
employees had been instructed by their union representative
to keep their activities a secret, and the employees testified
that they attempted to follow that instruction. As stated, at
286 NLRB at 495:
Such an instruction would greatly diminish, if not
completely extinguish, the chance that an employer
would find out about union activity until the union in-
volved chose to make that activity known.
The Board, with Chairman (then Member) Stephens dissent-
ing, affirmed the judge’s recommended dismissal. (The dis-
sent relied, inter alia, on the judge’s finding that the reasons
given for the discharges were ‘‘incredible.’’)
The only element of Pizza Crust, supra, that I mentioned
at trial was the fact that the employees there, as here, de-
cided to keep their union activities covert. However, counsel
for the General Counsel, on brief, does not mention the deci-
sion of Groenwaldt and Guss to keep their union activities
covert, apparently conceding that this case and Pizza Crust,
supra, are indistinguishable on this critical point.
Counsel for the General Counsel attempts to distinguish
Pizza Crust, supra, only on the ground that she does not here
argue a ‘‘small plant theory’’ under Weise Plow Welding
Co., 123 NLRB 616 (1959), as the General Counsel did in
Pizza Crust, supra. This is a distinction without a difference;
the General Counsel is still requesting that knowledge be im-
puted, and the factor of the employees’ engaging in only
covert union activity must be addressed.
For a theory of imputed knowledge, the General Counsel
argues a ‘‘confluence of circumstances’’ theory that was ar-
1267MONTGOMERY WARD & CO.
13 This was the clear implication of Gottshall’s warning to
Groenwoldt that, at the end of the day, Cardamone wanted to see
him.
14 Strictly speaking, there was no known employee activity here,
either. Respondent knew that the Union was campaigning at the
gate, but there is no evidence that Respondent knew that any em-
ployees were campaigning inside (or anywhere else).
15 On brief, p. 18, counsel for the Charging Party also attempts to
distinguish Pizza Crust, supra, by stating: ‘‘In addition, the Board
found that the Respondent had legitimate reasons for discharging the
employees.’’ This statement is false. The judge entered an extended
discussion on the point, and he concluded that the asserted discus-
sion on the point, and he concluded that the asserted reasons for the
discharges in were ‘‘incredible.’’ Moreover, the dissent (on which
counsel relies) based its opinion on the fact that the judge had held
the defenses to be ‘‘incredible.’’ Hopefully, the misstatement by
counsel for the Charging Party was made only through lack of care.
16 Not one employee had been disciplined for letting the red light
come on, Groenwoldt’s alleged sole alternative to following instruc-
tions.
17 It is a virtual certainty that, if Tate had passed his probationary
period and was entitled to a warning on that basis, Respondent
would have brought out the fact.
ticulated in Abbey’s Transportation Services, 284 NLRB 698
(1987). To do this, the General Counsel necessarily employs
the artifice of ignoring the element of covert activity in-
volved here, and no further discussion on the point is really
warranted. Setting aside for the moment, however, that which
cannot be set aside for an instant, Abbey’s, supra, is never-
theless distinguishable.
In Abbey’s, supra, two employees were also discharged
immediately after engaging in union activities. However, that
activity was far more substantial than the minimal, unsuc-
cessful, talking that Groenwoldt and Guss did here. The em-
ployees in Abbey’s, supra, secured 31 union authorization
cards in a unit of 63 employees, and they got 22 of the unit
employees to attend a meeting. Immediately after the union
filed a Board petition, the employer called them into the of-
fice and discharged them, together, for alleged misconduct
that antedated their union activity. The Board found knowl-
edge from the circumstances, noting, inter alia, that the
discriminatees
as the prime movers of the organizational effort, had
made substantial progress in card-signing and in gener-
ating attendance at a Union organizational meeting.
Here, the card signing and meeting attendance involved only
3 employees in a unit of up to 200 employees. And the
progress after the April 13 union meeting was not ‘‘substan-
tial’’; it was nonexistent.
Moreover, in Abbey’s, supra, the Board heavily relied on
the fact that, for no plausibly legitimate reason, the employ-
ees were called into the locus of managerial authority for dis-
charge together. Here, assuming that Groenwoldt was ‘‘set
up’’ on April 17 by having him moved to a busier shipping
lane,13 Guss would not (at least according to this record)
have found his way to Cardamone’s office on the same date
if he had not, on that date: (1) lost two picking tickets, and
(2) asked to go to Cardamone’s office. That is, assuming that
Respondent was searching for pretexts to discharge both
Guss and Groenwoldt, Respondent did not, as did the em-
ployer in Abbey’s, supra, create the element of timing unilat-
erally.
Finally, in Abbey’s, supra, the ‘‘confluence of cir-
cumstances’’ did not include the circumstance of covert
union activity by the alleged discriminatees, and this case
does.
Counsel for the Charging Party attempts to distinguish
Pizza Crust, supra, on the fact that, in that case, the em-
ployer had no notice that any union activities were being
conducted by any employees. Although this is an accurate
statement of what was found in Pizza Crust, supra, the lack14
of knowledge that any union activity was afoot was held rel-
evant only on the issue of whether a wage increase was
granted in order to interfere with a known organizational at-
tempt.15 Moreover, the Board has never held that knowledge
of some union activity by some employees creates a pre-
sumption of knowledge of the protected activities of any em-
ployee who engages in protected activities and who is dis-
charged for pretextual reasons. If ever such a presumption is
created, it is unlikely that it will cover employees such as
Groenwoldt and Guss who engaged only in minimal union
activities and who did so covertly.
Clearly, Groenwoldt was the victim of discrimination.
Groenwoldt was totally without justification when he simply
ignored Respondent’s instructions to scan large merchandise
only in the red rectangles, even if other employees did it.16
However, when Cardamone saw Izea Tate marking merchan-
dise outside the red rectangle, he warned Tate that he could
be discharged for such. When Schmitt saw Groenwoldt
marking merchandise outside the red rectangle, he ordered
Cardamone to discharge Groenwoldt. Then Cardamone did
so, necessarily knowing that Groenwoldt had not gotten the
categorical warning of which Tate was given the benefit.17
Clearly, Guss was the victim of discrimination. Respond-
ent wants it both ways: bringing a halt to lost picking tickets
was absolutely imperative, as evidenced by almost daily con-
ferences (among supervisors and employees); however, Re-
spondent (although it is a sufficient organizational acumen to
operate a $25-million inventory, 200-employee, 600,000-
square-foot warehouse) could not find a way to detect any
employee who lost tickets, except Guss. (And Guss was
‘‘caught’’ only because he followed instructions and placed
his initials on his picking tickets.) The defense for the dis-
charge of Guss was a fabrication of the first order, as ac-
knowledged by Lennox to Guss, and the testimony in support
the fabrication was undoubtedly perjurious.
In summary, the other indispensable elements of a viola-
tion under the Act, animus and discriminatory treatment, are
present. Nevertheless, as in Pizza Crust, supra, the incredible
defenses do not substitute for the missing, indispensable, ele-
ment of knowledge of the the alleged discriminatees’ pro-
tected activities.
Accordingly, I am constrained to conclude that the General
Counsel has failed to prove that Guss and Groenwoldt were
discharged in violation of Section 8(a)(3), and I am forced
to recommend that these allegations of the complaint be dis-
missed.
[Recommended Order for dismissal omitted from publica-
tion.]