Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

Mar 5, 1951

93 N.L.R.B. 640 (N.L.R.B. 1951)

640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. By discriminating in regard to the hire and tenure of employment of
Dwight L. Stephenson, thereby discouraging membership in Local 202, Inter-
national Brotherhood of Electrical Workers, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (3)
of the Act.
6. By interfering with, restraining, and coercing her employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
8. The Respondent has not discriminated against Milton Crane and Chester
Egan, as alleged in the complaint.
[Recommended Order omitted from publication in this volume.]
MONTGOMERY WARD & CO., INCORPORATED and AMERICAN FEDERATION
or LABOR. Case No. 3-CA-189. March 5, 1951
Decision and Order
On November 7, 1950, Trial Examiner Henry J. Kent issued his
Intermediate Report in the above-entitled proceeding, finding that
the Iespondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
The Respondent also requested oral argument. This request is hereby
denied because, in our opinion, the record, exceptions, and brief ade-
quately present the issues and positions of the parties.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following additions and
modifications : 2
1. We find, as did the Trial Examiner, that the Respondent violated
Section 8 (a) (1) of the Act by the following conduct of Manager
Boughton : (1) Interrogating employees Lois Krott, Frances Scordo,
and Loretta Stuckey as to whether they had received solicitation
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[Members Houston, Murdock, and Styles].
1 The Trial Examiner stated that the complaint alleged that Victor was discharged on or
about July 11, 1949. This date is hereby corrected to June 11, 1949.
93 NLRB No. 89.
MONTGOMERY WARD & CO., INCORPORATED 641
letters from the Union; (2) telling employees Scordo and Stuckey
that he was going to "isolate" and discharge Elizabeth Victor; and
(3) warning Stuckey to stay away from "Victor and her gang."
The Respondent contends that its interrogation was not violative
of the Act because Boughton's inquiries as to whether the employees
had received letters from the Union were "isolated and innocuous."
We do not agree. The Board has consistently held that the question-
ing of employees as to any aspect of union activity is per se violative
of Section 8 (a) (1) of the Act.3 Moreover, the Respondent's argu-
ment overlooks the fact that Boughton's interrogation was accom-
panied by threats of retaliation directed against Victor, the leading
union proponent in the store, and was part of a course of conduct
antagonistic to unionism. In this connection, we find no merit in the
Respondent's further argument that Boughton's comments about Vic-
tor could not have been interpreted as threats to punish employees
for engaging in union or concerted activities because neither Boughton
nor the employees were aware of Victor's union activities at that time.
Boughton's statements about Victor immediately followed his inter-
rogation of these employees as to whether they had been solicited by
the Union. In this context, his threats to isolate and discharge
Victor could have had only one meaning, that Boughton intended to
punish her because he knew, or believed, that she was engaging in
union activities.4
2. We also agree with the Trial Examiner's conclusion that the
Respondent discriminatorily discharged Elizabeth Victor on or about
June 14, 1949,5 in violation of Section 8 (a) (3) and 8 (a). (1) of the
Act. The Respondent's discriminatory motivation is readily apparent
from Manager Boughton's assertions to employees Scordo and Stuckey,
on June 3 or 4, 1949, when he interrogated them with respect to the
Union, that he intended to isolate and discharge Victor.6 More-
over, the summary nature of her discharge and Manager Boughton's
refusal to give Victor any explanation for her termination tends to
refute the Respondent's contention that it discharged Victor for cause,
8 Standard -Coosa- Thatcher Company, 85 NLRB 1358, and cases cited therein ; New
Jersey Carpet Mills, Inc., 92 NLRB 604
S We find no merit in the Respondent's contention that Stuckey, a department head,
was a supervisor and that Boughton's remarks to her were therefore protected As
discussed below, we find that the Respondent's department heads are not supervisors
within the meaning of Section 2 (11) of the Act.
Nor do we regard as controlling in this case the question of whether the employees
came to see Boughton voluntarily or were summoned by him. In each instance, Boughton
initiated the conversation about the Union
This corresponds to the date on which the replacement for Victor was hired, and is
the date implied by the Trial Examiner
° The Respondent contends, in support of its argument that Victor was discharged for
cause, that Boughton did not knon of Victor s union activities until after she was dis-
charged. Such knowledge is evident, however, from the statements made by Boughton
to employees Scordo and Stuckey
943732-51-42
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
namely because of her "troublemaking" and unsatisfactory sales
-record .7
The Respondent alleges that it became dissatisfied with Victor's
work shortly after August 1948, the date of her last merit increase.
However, in support of its allegation that it discharged her for cause,
the Respondent introduced evidence of specific instances of "trouble-
making and insubordination" dating back to June 1947. It is appar-
ent from this evidence that the complaints about Victor, upon which
the Respondent relies, were as infrequent and trivial after August
1948 as they were before that date. Similarly, although the Respond-
ent admits that it considered Victor's work satisfactory until August
1948, as reflected in her merit increase at that time, it contends that
her sales record was poor throughout 1948 as well as 1949. Moreover,
the Respondent has failed to introduce any evidence to show that
Victor's sales actually decreased more than the sales in the other
departments of the store or in similar departments of its other stores.
In any event, it seems highly improbable that, if the Respondent had
become dissatisfied with Victor's work shortly after August 1948,
it would have retained her in its employ for almost a year after that
date, until June 1949. We therefore find no merit in the Respondent's
contention that Victor was discharged for cause.8
On the basis of these facts and particularly in view of Boughton's
stated intention to isolate and discharge Victor the timing of her
discharge which followed soon after the start of the Union's organi-
zational campaign,9 and the further fact that Victor was summarily
discharged without warning and without any explanation, we are
satisfied that Victor was discharged because of her union activities.
Nor do we find any merit in the Respondent's contention that
Victor, as well as the other department heads, was a supervisor within
the meaning of the Act. The Respondent employs approximately
18 department heads and about 20 second girls or extra employees,
who assist the so-called department heads in selling, keeping the de-
partments clean, and maintaining stock and sales records. Although
the department heads generally earn more than the second girls, they
perform the same duties, work the same hours, and, like the second
girls, are required to punch a time clock. As extra employees are
' we find that the provision in Victor's application for employment that her employ-
ment might be "terminated at any time without notice" does not preclude the Board
from concluding, as it does here, that the summary nature of her discharge was, inter alia,
indicative of discriminatory motivation.
s In reaching this conclusion , we do not rely on the amount of commissions earned by
Victor or on the Trial Examiner 's statement that "the Respondent is treading on dangerous
ground when he asserts [complaints regarding working conditions ] to be grounds for
discharge."
9 We do not credit the testimony of Boughton and Stearns that they discussed the
possibility of discharging Victor as early as December 1948 and that they decided to
discharge her on May 19, 1949.
MONTGOMERY WARD & CO., INCORPORATED 643
assigned to those departments of the store which are particularly
busy, some of the departments heads work alone, either all or part
of the time. In fact, at the time of her discharge, and for several
months before, Victor was the only one in her department. Although
the Respondent contends that the department heads responsibly direct
and supervise the work of the second girls in their respective de-
partments, it is clear that their direction of the work of the second
girls consists of transmitting to them the instructions which the
department heads receive from the manager and assistant manager,
and that their supervision is of the type usually exercised by experi-
enced employees over those less experienced. Nor does the record
support the Respondent's assertion that department heads have the
power effectively to recommend the hiring, promotion, transfer, dis-
charge, or discipline of extra employees,10 or that they have ever
been informed that they possess such authority. Moreover, to find
these individuals to be supervisors would create the highly improb-
able supervisory ratio of approximately one supervisor for each
employee."' We therefore find that the Respondent's department
heads are not supervisors within the meaning of Section 2 (11) of
the Act Iz
Order
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Montgomery Ward & Co.,
Incorporated, Olean, New York, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Interrogating its employees as to union activities in the store;
and threatening its employees with -discharge or other economic
reprisals because of their union affiliation or activities.
(b) Discouraging membership in American Federation of Labor'13
or in any other labor organization of its employees, by discharging
and refusing to reinstate any of its employees or by discriminating
in any other manner in regard to their hire and tenure of employment,
or any term or condition of employment.
10 Boughton testified to only one instance, during Victor's 3 years as a department head,
where her recommendation allegedly was given weight In that case, however, Victor
recommended Scordo, the second girl in her department, for promotion to a department
head, and the Respondent, instead, promoted employee Searl to that position. Several
months later, Scordo was "promoted" to a job in the office.
11 The Board has often considered the relative number of employees and alleged super-
visors in determining the supervisory status of individuals The Ironsides Company,
87 NLRB 1564; Gellman Manufacturing Company, 87 NLRB 292.
12 Leopold Adler Company, 82 NLRB 482.
's we find no merit in the Respondent's contention that the record is lacking in proof
that American Federation of Labor is, for the purposes of this case, a labor organization
within the meaning of Section 2 (5) of the Act.
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist American Federation of Labor,
or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all of such activities, except to the extent
that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to Elizabeth Victor immediate and full reinstatement
to her former or substantially equivalent position, without prejudice
to her seniority or other rights and privileges.
(b) Make whole Elizabeth Victor, in the manner set forth in the
section of the Intermediate Report entitled "The Remedy," 14 for any
loss of pay she may have suffered as a result of the Respondent's
discrimination against her.
(c) Upon request, make available to the National Labor Relations
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 an analysis of the amount
of back pay due under the terms of this Order.
(d) Post at its store in Olean, New York, copies of the notice at-
tached hereto and marked "Appendix A." 15 Copies of said notice,
to be furnished by the Regional Director for the Third Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof and maintained
by it for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Third Region, in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein, insofar as it
alleges other violations of Section 8 (a) (1) of the Act, be, and it
hereby is, dismissed.
"Victor' s loss of pay shall, however , be computed from the date for which she last
received wage payments from the Respondent, rather than from. June 25, 1949, as
recommended by the Trial Examiner
15 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be inserted before the words , "A Decision and Order ," the words, "A
Decree of the United States Court of Appeals Enforcing "
MONTGOMERY WARD & CO., INCORPORATED
Appendix A
NOTICE TO ALL EMPLOYEES
645
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT interrogate our employees as to union activities
in our store; or threaten our employees with discharge or other
economic reprisals because of their union affiliation or activities.
WE WILL NOT discourage membership in AMERICAN FEDERATION
OF LABOR, or in any other labor organization of our employees,
by discharging or refusing to reinstate any of our employees, or
by discriminating in any other manner in regard to their hire and
tenure of employment, or any term or condition of employment.
WE WILL NOT in any other manner interfere with' _restrain, or
coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist AMERI-
CAN FEDERATION OF LABOR, or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any or all of such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Sec-
tion 8 (a) (3) of the Act.
WE WILL offer to Elizabeth Victor immediate and full reinstate-
ment to her former or substantially equivalent position, without
prejudice to her seniority or other rights and privileges previously
enjoyed, and make her whole for any loss of pay she may have
suffered as a result of our discrimination against her.
All our employees are free to become, remain, or refrain from be-
coming or remaining, members of AMERICAN FEDERATION OF LABOR,
or any other labor organization, except to the extent that this right may
be affected by an agreement in conformity with Section 8 (a) (3)
of the Act. We will not discriminate in regard to hire or tenure of
employment or any term or condition of employment against any em-
ployee because of membership in or nonmembership in any such labor
organization.
MONTGOMERY WARD & Co., INCORPORATED,
Employer.
By -------------------------------------------
(Representative ) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report
Wx2liam Naimark, Esq., for the General Counsel.
David L. Dickson, Esq., and Brooks Wynne, Esq., of Chicago, Ill., for Re-
spondent.
STATEMENT OF THE CASE
Upon charges and amended charges duly filed and served by the American
Federation of Labor, herein called the Union, the General Counsel of the Na-
tional Labor Relations Board, herein called, respectively, the General Counsel'
and the Board, by the Regional Director for the Third Region (Buffalo, New
York), issued a complaint dated April 14, 1950, against Montgomery Ward &
Co., Incorporated, of Olean, New York, herein called Respondent, alleging that
Respondent had engaged in and was engaging in unfair labor practices within
the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the
Labor Management Relations Act, 61 Stat. 136, herein called the Act. Copies
of the charges and the complaint together with a notice of hearing were duly
served upon Respondent and the Union.
With respect to the unfair labor practices, the complaint in substance, as
amended at the hearing, alleges that: (a) Respondent discharged employee
Elizabeth Victor on or about July 11, 1949, because she joined and assisted the
Union, or because she engaged in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection; (b) that Respondent
threatened and warned its employees to refrain from joining or assisting the
Union or engaging in concerted activities with Victor or other employees ; and
(c) that Respondent engaged in acts of surveillance of the employees regarding
their union activities.
Before the opening of the hearing, Respondent filed a written motion for a
specific bill of particulars regarding the several allegations of the complaint.
This motion was granted in part and denied in part by Trial Examiner Stephen
Bean to whom it had been referred for consideration and the General Counsel,
in substance, complied with Mr. Bean's ruling.
Thereafter Respondent duly filed its answer admitting the allegations of the
complaint regarding its business operations, but denying the commission of the
alleged unfair labor practices'
Pursuant to notice, hearing was held on June 5 and 6, 1950, at Olean, New
York, before the undersigned Trial Examiner duly designated to act in the
place and stead of Trial Examiner BeaIi by the Chief Trial Examiner.
The General Counsel and the Respondent were represented by counsel. Full
opportunity to be heard, to examine and cross-examine witnesses, and to in-
troduce evidence bearing on the issues was afforded to all parties.
At the opening of the hearing, a motion by the General Counsel was granted
to amend the complaint by including an allegation that Respondent engaged in
surveillance in respect to the Union or concerted activities of the employees.
Respondent requested that particulars be furnished respecting the new allega-
tion and at the same time renewed its earlier motion previously ruled on and
denied in part by Trial Examiner Bean and moved for a continuance. Pursuant
to the undersigned's order, the name of Respondent's agent guilty of alleged sur-
veillance was stated on the record. The earlier ruling of Trial Examiner Bean
1 Ths term includes counsel appearing on behalf of the General Counsel.
2 Subsequently, during the hearing a motion was granted to amend the answer by
including averment that Victor, the 8 (a) (3) complainant, was a supervisor within the
meaning of the Act.
MONTGOMERY WARD & CO., INCORPORATED 647
was confirmed, and the requested continuance presently denied without prej-
udice to consideration df a later request for continuance at the close of the
General Counsel's case, providing a proper showing of prejudice or surprise was
than made.8
At the close of the General Counsel's case-in-chief, Respondent moved to dismiss
the various allegations of the complaint for the reasons that the proof offered
failed to sustain them. The motion was granted in respect to the allegation
charging surveillance, but denied without prejudice to later renewal regarding
the 8 (a) (3), and other independent 8 (a) (1) allegations.
At the close of the hearing, Respondent renewed his former motions and in
addition also moved to dismiss the 8 (a) (3) allegation pertaining to Victor for
the reason that the evidence shows her to be a supervisory employee within the
meaning of the Act. Rulings on all of the Respondent's outstanding motions were
reserved pending consideration of the entire record and they are now disposed
of by the findings and conclusions below.
The parties were afforded an opportunity to present oral argument before the
undersigned but waived it. They were then granted 15 days to file briefs. Briefs
from both parties have been duly received.
Upon the entire record, and from his observation of the witnesses, the under-
signed makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Montgomery Ward & Co., Incorporated, is an Illinois corporation which
maintains its office and principal place of business at Chicago, Illinois. It is
engaged in the sale and distribution of merchandise throughout the United
States through the medium of mail order houses and retail stores, including a
retail store in Olean, New York, and the only unit of Respondent's business in-
volved in this proceeding.
Respondent, during the year of 1948, sold merchandise valued in excess of
`$500,000, of which approximately 10 percent was shipped to points outside of
New York State. During the same period said store purchased or received
merchandise valued in excess of $500,000, of which approximately 70,percent
was received from points outside the State of New York.
Respondent admits the facts above are substantially correct.
II. THE ORGANIZATION INVOLVED
The American Federation of Labor is a labor organization admitting to mem-
bership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Introductory summary of the labor relations and factual background
For several years last past, Respondent has operated its retail store at Olean,
New York, under the management of Paul Boughton.
Insofar as the record shows no formal organizational campaign had ever
been initiated at Respondent's store until the early part of May 1949. At this
time, A. S. Cummings, recording secretary of an A. F. of L., "Teamsters" local
8 No subsequent request for a continuance was thereafter made by Respondent.
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the area, reported to Martin C. McIntyre, a general organizer for the A. F. of L.,
that the employees desired to organize. 4
A few days later in May 1949, McIntyre met with Respondent's employees
Elizabeth Victor and Helen Sakala at Olean to map out a proposed organizing
campaign. About 1 week later, Victor prepared a list containing the names
and addresses of a number of Respondent's employees for McIntyre, who, on or
before May 31, sent letters to the employees named on the list soliciting them to
join the Union. An application card for membership in an A. F of L. Federal
Labor Union to be formed was enclosed with each letter. One of these cards
was signed by Victor on June 1, 1949.
On June 2 or 3, 1949, employee Parks, hereinabove mentioned, informed
Boughton that she had received one of the letters, shortly thereafter, Boughton
called some of the other employees to his office and asked them if they had also
received similar letters from the Union. As more particularly discussed below,
after employees Scordo and Stuckey admitted receiving such letters Boughton
in substance warned them to have nothing to do with Victor and her gang
Thereafter on June 11, 1949, Victor left the store to go on her regular 2-week
annual vacation. Two or three days afterward, Boughton hired a new employee
to take over the job Victor had filled for nearly 3 years. Victor learned of the
arrangement about June 22 and called Boughton on the telephone to ascertain
if this meant that she was to be discharged; Boughton informed her that she
had been, but refused to give any reason for the action taken
On July 13, 1949, the Union filed charges averring among other things that
Victor and Sakala (the latter, however was not named as a complainant in the
case) had been discriminatorily discharged for engaging in union activities, and
that Respondent had engaged in other conduct in violation of Section 18 (a) (1)
of the Act.
B. Interference, restraint, and coercion
Employees Lois Krott, Frances Scordo, and Loretta Stuckey, all witnesses
called by the General Counsel, testified that within a few days after they had
each received a letter from the Union soliciting their membership, Manager.
Boughton interrogated each of them and asked them whether they had received
such a letter 6
Knott testified that Boughton asked her whether she had received such a letter
and said that when she replied "Yes," he merely remarked that he was opposed
to unions.
But, after addressing similar inquiries to Scordo and Stuckey and learning
that each of them had also received such letters, Boughton, in substance, warned
each of them to have nothing to do with Victor.
Scordo gave the following testimony regarding threats uttered on this occasion
by Boughton against Victor:
[Boughton] said he was going to isolate [Victor] and ... just kept on
making comparisons. Well, he said when there is a rotten apple in the
bushel well, naturally, we will try to get the rotten apple out before they
Cummings was a brother-in-law of employee Elizabeth Victor, the complainant dis-
chargee Boughton admitted that sometime in January 1949, an employee named Parks
Informed Boughton that Cummings, a relative of Victor, told Parks in substance that the
employees should join the A. F. of L and that on this occasion, he, Boughton, requested
Parks to point out Cummings to Boughton on Cummings next visit to the store.
6 Previously to interrogating lirott, Scordo, and Stuckey, Boughton had been informed
about the letters by Gail Parks Shaffer, the same employee who had reported to Boughton
in January 1949, that Cummings, a union representative, had been advocating organization
to the employees.
MONTGOMERY WARD & CO., INCORPORATED 649
all turn rotten , and he said when a person has T B. or some sort of disease
they isolate them put them in a place where all the people are the same so
nobody [else ] gets it.
Q Did he ask you anything else?
A [Boughton] did ask me something about [taking] sides, if I was going
to be on his side. I didn't know exactly what he meant by that, but we
had been talking about Mrs. Victor, so that is [who ] I supposed - he had in
mind.
and Scordo further testified that she then told Boughton, "Well, I was working
for Montgomery Ward and I said naturally I was going to do my work," where-
upon their conversation concluded.
Stuckey, in substance, gave the following regarding her interrogation by
Boughton concerning the union letter and threats made at the time by Boughton
that the latter intended to discharge Victor. She related that she had been
called to Boughton's office during the latter part of May or early in June, that
Boughton briefly questioned her about Stuckey's time payment account with the
store, that he then asked her whether she had received a letter from the Union,
and that when she replied that she had received such a letter, Boughton remarked
that if the employees were organized the, so-called second girls would receive
the same wages as department heads (the job Stuckey held), which would be
unfair to department heads.
Stuckey further testified that Boughton concluded the conversation by stating:
"I want you to stay away from Mrs. Victor and her gang" and then said,
"I am going to fire her if its the last thing I do." [Emphasis supplied.]
Boughton, when testifying on behalf of the Respondent, failed to deny that
he had uttered the threats against Victor attributed to 'him by Scordo and
Stuckey. He admitted that he had received vountary reports from some of the
employees concerning the union letters of solicitation, but said, "I don't recall
asking [any employee if she had received such a letter] I don't think I did."
Basing my conclusions on my observation of the four witnesses and a realistic
consideration of all of the evidence in the record I am convinced and find that
Boughton initiated the interrogations regarding the receipt of the union letters
as related above by Krott, Scordo, and Stuckey and accept the versions of the
last named three witnesses as credible and true.
C. The discharge of Elizabeth Victor
Victor was hired by Respondent on July 1, 1946, to work as a salesgirl at a
weekly wage of $22 50. Two weeks later Manager Boughton called her to his
office and told her that the department head in department 11, which handled the
sales of women's sportswear, was quitting, and that since Victor had shown
ability in performing her work Boughton had decided to promote her to the
job as department head in department 11 and increase her wages to $25 a week."
She continued to work regularly on this job until she was terminated in June
1949, a few days after the Union openly commenced its organizational campaign
among Respondent's employees. She received two merit wage increases of
$2 50 a week each during the year 1947 and two similar merit increases during
the year of 1948. According to her credited and undenied testimony she had
"Although , as further discussed below , the Respondent asserts that the job of department
head is a supervisory position , the record fails to show such employees possess substantial
supervisory authority , but are in reality merely first -class salesgirls The store employs
about 18 so-called department heads and about 20 other salesgirls all of whom substantially
perform the same duties.
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
never been reprimanded because of any major delinquency and never warned
that her job was in jeopardy for any reason.
As noted above, Manager Boughton learned in January 1949 that Cummings,
Victor's brother-in-law, had been advising some of Respondent's employees to
organize. As also found above, Victor spearheaded the union activities in con-
nection with the Union's organizational campaign in May and June 1949, for it
was Victor who furnished the list of names and addresses used by the Union to
solicit Respondent's employees to join it, by sending letters mailed about June 1,
1949, to those persons named on the list.
On June 11, 1949 (about a week after Boughton learned that the Union was
carrying on an active organizing campaign), Victor left to take,her regular
2-week annual vacation. About June 13 or 14, Boughton hired a new employee
to permanently take over the job Victor had held for nearly 3 years When
Victor learned on or about June 22 that a new employee had taken over her
job, she called Boughton on the telephone and asked him if that meant she
was being discharged. Boughton replied "Yes" and then refused to give her
an explanation for the action taken.7
Respondent's defense was that Respondent discharged Victor because she
was a troublemaker and because the sales in her department materially de-
creased during 1948 and 1949 as compared to the sales of other departments
in the organization. In addition, by way of affirmative defense, it asserts that
Victor was a supervisory employee and therefore not an employee within
the meaning of the Act.
Manager Boughton in his testimony asserted that some of the employees
complained to him that Victor was a sharp-tongued, sarcastic person, that a
few of them requested not to be assigned for work in the vicinity of Victor, that
she voiced numerous complaints to other employees that "Wards" was not a good
place to work in because the employees were obliged to work too hard for the
wages paid, that she was too outspoken concerning her objections to working
every Saturday night until 8 30 p. in., and that these complaints started soon
after Victor commenced to work at the store. Boughton was particularly con-
cerned about her complaints regarding Saturday night work, for at a meeting
of department heads, which Victor attended and which was held about 2 weeks
before her discharge, Boughton in substance asserted that the store would con-
tinue to remain open on Saturday nights regardless of employee objections"
Victor credibly asserted and Boughton admitted that he had never personally
reprimanded her because of the above-claimed delinquencies. On the other
hand, the record shows that Victor received four merit raises of $2 50 a week
and that two of them were granted in 1947 and the other two in 1948. This
leads the undersigned to conclude that her asserted delinquencies were not
regarded by Respondent to be as grave as presently contended.
In respect to the defense urged that her sales volume showed a greater de-
crease during the entire year of 1948, and also during 1949 than that of
other competing employees, this defense is based upon conclusionary testimony
by Boughton unsupported by comparative sales record data available to the
Respondent. Employment conditions were not so tight in 1948, that she could
not have been easily replaced. Moreover, Boughton admitted that she received
a bonus commission of $43.22 on her sales for the period from April 27 to May
7 These findings are primarily based upon the credited testimony of Victor , which was
not substantially or convincingly denied by Boughton
s Such complaints regarding working conditions made during conversations between
employees are more or less closely related to concerted activities protected by the Act.
Therefore , Respondent is treading on dangerous ground when he asserts them to be
grounds for discharge. _
MONTGOMERY WARD & CO., INCORPORATED 651
25, 1949. This seems to the undersigned to be a substantial commission for a
salesgirl paid a basic wage of $35 a week. In the absence of a more convincing
probative showing by the Respondent that other depaitment heads made
better comparative records, it strongly refutes Respondent's mere unsupported
assertion that her sales record was poor.
In reference to Respondent's claim that Victor was a supervisory employee,
the record shows that 18 of the salespersons were classified as so-called de-
partment heads and that in addition there were 20 other employees classified
as second girls or extra employees. All of these employees did substantially
the same work, namely, engaging in selling merchandise to customers and
keeping records on individual sales made. All of the sales force aided in main-
taining a running inventory on the stock on hand at the counters where they
respectively worked, and in keeping the merchandise on hand in good order
for display purposes, and in assisting in cleaning the display cases and
counters. They all worked the same hours and so-called department heads only
received a slightly higher basic wage than the so-called second girls. The
Board has held in the case of Leopold Adler Company, 82 NLRB 482, a case
involving another department store, that 11 department heads, all of whom
performed similar work as the department heads at Respondent's store, were
not supervisory employees within the meaning of the Act. Accordingly, I find
that Victor was not a supervisory employee.'
D. Concluding findings
1. Interference, restraint, and coercion
As found above, Respondent's manager, Boughton, interrogated employees
Krott, Scordo, and Stuckey regarding whether each of them had received solici-
tation letters from the Union Respondent, in effect, contends that such in-
terrogations are not violations of the Act. The undersigned does not agree.
The law is well settled that interrogations by an employer to his employees
regarding matters of union concern are no business of the employer and are
per se violations of Sections 7 and 8 (a) (1) of the Act"
As further found above, Boughton' s assertion to Scordo, almost immediately
after she had admitted to him she had received one of the Union's solicitation
letters, that he, Boughton, was going to "isolate" Victor so that she could not
contaminate other employees clearly indicates that Boughton had learned, or
at least believed, that Victor was responsible for the advent of the Union at
the store and that he was going to punish Victor for it. Likewise, in view of
the surrounding circumstances, Boughton's warning to Stuckey to "stay away
from Victor and her gang" because he intended to discharge Victor (which
had been voiced almost immediately after Stuckey's admission that she had
received one of the letters from the Union) may only be regarded as a threat
to punish employees for engaging in union or concerted activities.
Respondent in effect contends that assuming Boughton's conduct may have
been a violation of the Act; Respondent is not responsible for it because it
sent Boughton written instructions, to refrain from interfering with, coercing,
or restraining the employees in connection with their union activities and, in
See also, Providence Public Market Company, 79 NLRB 1482
10 Standard-Coosa-Thatcher Company, 85 NLRB 1358; Greensboro Lumber Company,
1 NLRB 629, 632, Sewell Mfg. Co, 72 NLRB 85, enfd as modified (on other grounds)
172 F 2d 459 (C. A. 5) ; Ames Spot Welder Co., Inc, 75 NLRB 352, footnote 6; Wytheville
Knitting Mills, Inc, 78 NLRB 640, enfd as modified (on other grounds) 175 F. 2d 238
(C. A 3) ; Minnesota Mining & Manufacturing Company, 81 NLRB 557
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
addition, ordered him not to discriminate against any employee because of
union activities."
The record shows that these instructions were never posted on the bulletin
boards at the Olean store of Respondent and further fails to show that they
were otherwise brought to the attention of employees. Boughton was Respond-
ent's supervisor in charge at its Olean store with full authority to hire and
discharge employees. Under the circumstances, Respondent is responsible for
his actions and conduct regarding labor relations activities.
On all the foregoing the undersigned is convinced and finds that the above-
mentioned acts and statement's of Boughton constituted interference with, re-
straint, and coercion of the employees in the exercise of their rights guaranteed
in Section 7 of the Act, thus also in violation of Section 8 (a) (1) thereof.
2. The discriminatory discharge of Victor
The preponderance of the credible and convincing evidence in the record
convinces me that Boughton discharged Victor because of her union activities,
and not for valid cause as asserted by Respondent.
She was summarily terminated by Respondent without notice or warning
during her regular annual 2-week vacation which began on Monday, June 13,
1949. Thereafter, Respondent refused to state to her the reasons for the dis-
charge although she had been regularly employed on the same job for nearly 3
years.32
The record shows that Victor was the leading protagonist for the Union, for
it was she who first met with the union organizer early in May 1949 when he
outlined a campaign. Thereafter, later in May, Victor furnished the organizer
with a list of names and addresses of many of the employees, which list was used
to send out letters by the Union on June 1, soliciting the recipients to join the
Union.
It is true as asserted by Respondent that there is a lack of direct evidence in
the record to show that Respondent had specific knowledge of Victor' s union
activities, but the record convincingly indicates that Boughton learned in some
manner, or was otherwise convinced, that Victor was leading adherent for the
Union because on or about June 3 or 4, 1949, Boughton asserted to employee
Scordo that he was going to "isolate" Victor to prevent her from contaminat-
ing other employees. Also, on or about the same day, he warned employee
Stuckey, to "stay away from Victor and her gang" followed by an assertion that
Boughton was going to discharge Victor if it was the last thing he did. In view
of the surrounding circumstances, it is a fair and reasonable inference and I
find that he intended to punish Victor because he believed she was responsible
for bringing the Union into the store, because the record fails to show that she
had committed any major delinquencies that would justify a summary discharge
without warning. But, it does convincingly show that Boughton was greatly
annoyed by the union activities among the employees. Moreover, the record
fails to show convincingly that Victor's sales record was poor as asserted by
Respondent or that she caused serious trouble among the employees. Had
11 Following the passage of the so-called Taft-Hartley Act, Respondent sent a restate-
ment of its labor relations policies to its store managers, by mailing them a four-page
mimeographed document containing the revised policy Admission of the document
(masked Respondent's rejected Exhibit 5) was denied on the grounds that the document
was not properly identified On reconsideration, I believe the ruling was too technical
and hereby rule that it may be received in evidence
12 Respondent hired a new employee to replace Victor on or about June 14, 1949, and
Victor first learned of the matter on or about June 22, a few days before her vacation ended
on June 25
MONTGOMERY WARD & CO., INCORPORATED 653
either contention been sound it is inconceivable that Respondent would have
retained her services for nearly 3 years, or until the Union appeared on the
scene Satisfactory employees to meet the reasonable requirements expected
of salesgirls could have been hired during all of 1948. Under the circumstances,
I am convinced and find that Victor was not discharged for cause within the
meaning of Section 10 (c) of the Act.
On all of the foregoing and the entire record, the undersigned concludes and
finds that by discharging and refusing to reinstate Elizabeth Victor because she
engaged in concerted or union activities, Respondent has discriminated with re-
gard to the hire and tenure of her employment, thereby discouraging member-
ship in a labor organization, and interfering with, restraining, and coercing the
employees in the exercise of the rights guaranteed in Section 7 of the Act, in
violation of Section 8 (a) (1) and (3) thereof.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in Section III, above, occurring in
connection with the operations of Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes, burdening and
obstructing commerce and the free flow of commerce
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies of the Act.
It has been found that Respondent discriminated in regard to the hire and
tenure of employment of Elizabeth Victor thereby discouraging membership
in the Union It will be recommended that Respondent offer Victor immediate
and full reinstatement to her former or substantially equivalent position," with-
out prejudice to her seniority or other rights and privileges, and that Respond-
ent make whole Elizabeth Victor for any loss of pay she may have suffered by
payment to her of a sum of money equal to the amount she would normally
have earned as wages from June 25, 1949, the (late of the discrimination against
her" to the date of Respondent's offer of reinstatement, less her net earn-
ings during such period.l" The loss of pay shall be computed on the basis of
each separate calendar quarter or portion thereof during the period from
Respondent's discriminatory action to the date of a proper offer of reinstate-
ment It will be further recommended that Respondent make available to the
Board, upon request, payroll and other records to facilitate the checking of
the amount of back pay due. 16
The scope of Respondent's illegal conduct discloses a purpose to defeat self-
organization among its employees. Such conduct, which is specifically viola-
tive of Section S (a) (1) and (3) of the Act, reflects a determination generally
to interfere with, restrain, and coerce its employees in the exercise of the right
to self-organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to engage in
13 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827
"This date is fixed by the fact that her annual vacation ended on June 25, 1949, and
it is presumed that she was paid up until this date.
1E Crossett Lumhei Company, 8 NLRB 440, 497-8
16 T 1F ll'oolwoi th Company, 90 NLRB 289 ; Cen-Tennial Cotton Gan Company, 90
NLRB 2,45
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerted activities for the purposes of collective bargaining or other mutual
aid or protection, and present a ready and effective means of destroying self-
organization among its employees. Because of Respondent's unlawful conduct
and since there appears to be an underlying attitude of opposition on the part
of Respondent to the purposes of the Act to protect the rights of employees gen-
erally," the undersigned is convinced that if Respondent is not restrained from
committing such conduct, the danger of their commission in the future is to be
anticipated from Respondent's conduct in the past, and the policies of the Act
will be defeated. In order, therefore, to make effective the interdependent
guarantees of Section 7 of the Act, to prevent a recurrence of unfair labor prac-
tices, and thereby minimize industrial strife which burdens and obstructs com-
merce, and thus effectuate the policies of the Act, the undersigned will recom-
mend that Respondent cease- and desist from in any manner infringing upon
the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. American Federation of Labor is a labor organization within the meaning
of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Eliza-
beth Victor and thereby discouraging membership in American Federation of
Labor, Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume ]
17 See May Department Stores Company, etc. v. N. L. R. B , 326 U. S. 376.
KELLY A. SCOTT and INTERNATIONAL ASSOCIATION OF MACHINISTS,
DISTRICT LODGE No. 727. Case No.. 1-CA-753. March 5, 1591
Decision and Order
On November 29, 1950, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that he cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent,
filed exceptions to the Intermediate Report, and a supporting brief.
The Board 1 has reviewed the rulings made by the Trial Examiner
'Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [ Members Houston , Reynolds,
and Styles].
93 NLRB No. 98.