Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

Apr 1, 1975

217 N.L.R.B. 232 (N.L.R.B. 1975)

232 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Montgomery Ward & Co., Incorporated and Retail
Clerks Union, Local 1364, Retail Clerks Interna-
tional Association , AFL-CIO. Case 20-CA-6445
April 1, 1975
SUPPLEMENTAL DECISION
By MEMBERS FANNING, JENKINS, AND KENNEDY
On March 20, 1973, the National Labor Relations
Board issued a Decision and Order' in the above-enti-
tled proceeding in which it adopted the findings, con-
clusions, and recommendation of Administrative Law
Judge Herman Corenman. The Board adopted the Ad-
ministrative Law Judge's credibility resolutions and
concluded, among other things, that Respondent had
not engaged in conduct in violation of Section 8(a)(1)
and (3) of the National Labor Relations Act as alleged.
Subsequently, the Charging Party filed with the United
States Court of Appeals for the District of Columbia
Circuit a petition for review of the Board's Order dis-
missing the complaint.
On September 9, 1973, while the matter was pending
before the court, the Union moved the court to remand
the case to the Board to conduct a further hearing on
newly discovered evidence. On January 15, 1974, the
court, without objection from the Board, issued its or-
der granting the Union's motion and remanded the
record to the Board for consideration of such newly
discovered evidence. On April 26, 1974, the Board is-
sued its order reopening the record and remanding the
proceeding to the Regional Director for a hearing to be
held by Administrative Law Judge Corenman for the
purpose of, and limited to, receiving such newly discov-
ered evidence referred to in the Union's motion. The
Board further ordered that after the close of the hearing
the Administrative Law Judge prepare and serve on the
parties a supplemental decision containing findings of
fact, conclusions of law, and recommendations based
upon the evidence received.
On November 6, 1974, the Administrative Law
Judge issued the attached Supplemental Decision in the
above-entitled proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the Charg-
ing Party filed a brief in support of the Administrative
Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Supplemental Decision in light of the exceptions
and briefs and has decided to affirm the rulings, find-
1 202 NLRB 593 (1973)
ings, and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
In his Supplemental Decision , the Administrative
Law Judge found and concluded that Respondent vi-
olated Section 8(a)(1) and (3) of the Act by virtue of its
mailing out to certain striking employees in July 1973
a statement with regard to the distribution to those
employees of their shares in Respondent's profit-shar-
ing program . We agree with the Respondent that the
Administrative Law Judge improperly found and con-
cluded that this particular conduct violated the Act.
The underlying complaint herein, which issued on
September 30, 1971 , alleged that various statements on
the part of Respondent 's supervisors threatened and
coerced Respondent 's employees in violation of Section
8(a)(1) of the Act. Several of the incidents were alleged
to have occurred prior to September 29, 1970, the day
the strike started, while the remaining incidents were
alleged to have occurred in the several weeks immedi-
ately following the start of the strike . The complaint
also alleged that since on or about November 14, 1970,
Respondent refused to reinstate unfair labor practice
strikers in violation of Section 8(a)(3) of the Act. As
noted above , after an extended hearing , the Adminis-
trative Law Judge found and concluded that either the
conduct complained of did not occur , or, if in fact
certain statements had been made by supervisory em-
ployees, they were statements protected by Section 8(c)
of the Act. Again, as noted above, after due considera-
tion the Board adopted the Administrative Law
Judge's findings and conclusions and dismissed the
complaint in its entirety.
The Board accepted the court's remand for the pur-
pose of receiving and considering the alleged newly
discovered evidence . The Union in its motion to the
court contended that the documents mailed out by the
Respondent in July 1973 to striking employees estab-
lished that certain employees had been terminated or
discharged on September 29, 1970, the day the strike
started, or shortly thereafter . If in fact these employees
had been terminated in 1970 , such conduct would have
been relevant to the issues raised by the original com-
plaint and litigated in the 1972 hearings. However, the
Administrative Law Judge found on the record pre-
sented that these employees had not been discharged as
of September 29, 1970, but rather that the employees
involved had been consistently treated as striking em-
ployees throughout the time period involved herein, a
finding and conclusion with which we agree.
It is clear from the record that the act of mailing
these notices in July 1973 was an independent act,
unrelated to any of the 1970 conduct alleged to have
been unlawful in the original complaint . The record
also shows that to date no charge has been filed with
regard to this 1973 conduct . In the absence of any
217 NLRB No. 43
MONTGOMERY WARD & CO., INCORPORATED 233
relationship between the 1973 conduct and the allega-
tions of the complaint, the conduct complained of must
be the subject of a new charge with further proceedings.
dependent on the General Counsel's determination that
the charge has merit.' Section 10(b) of the Act, how-
ever;, prohibits the Board from finding a violation based
on any conduct that occurred more than 6 months
preceding the date the charge is filed. In the absence of
filing of a timely charge and the issuance of a new
complaint, the Board is precluded from finding such
conduct a violation of the Act.'
Having concluded that the evidence proffered by the
Union has no bearing on the issues litigated under the
September 30, 1971, complaint, we adhere to our origi-
nal Decision and Order.
2 In this respect, the record shows that shortly after receipt of the notice
one of the employees wrote the Respondent inquiring as to the reason for
his "termination" and that Respondent replied to the employee pointing out
that he had not "been terminated but only permanently replaced " To pro-
ceed further with the Administrative Law Judge's findings at this time
would, in our opinion, usurp the function of the General Counsel to issue
complaints based on timely meritorious charges We also note that the
General Counsel has made no attempt to-amend the complaint.
3 LrunterSawDzvision ofAsko, Inc, 202 NLRB 330, fn. 1 (1973), Bastian-
Blessing, Division of Golconda Corporation, 194 NLRB 609, 612 (1971).
Accordingly, we do not pass on the merits of the Administrative Law
Judge's findings and conclusions that Respondent did in fact violate Sec.
8(a)(1) and (3) of the Act by mailing out the July 1973 notices regarding
the profit-sharing plan.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
HERMAN CGRENMAN, Administrative Law Judge: The Ad-
ministrative Law Judge issued a Decision in the above-cap-
tioned case on October 24, 1972, recommending dismissal of
the complaint in its entirety. This Decision and Recom-
mended Order of dismissal was adopted by the Board on
March 20, 1973 (202 NLRB 593 (1973)). Thereafter, the
Charging Party, herein called Union, petitioned the United
States Court of Appeals for the District of Columbia to re-
view the Board's Decision and Order. While the matter was
pending with that court, the Union on September 9, 1973,
moved the court to remand the case to the Board to conduct
a further hearing on newly discovered evidence. On January
15, 1974, the-court, without objection from the Board, issued
its Order granting the Union's motion, and remanded the
record to the Board for consideration of such newly discov-
ered evidence. On April 26, 1974, the Hoard issued its Order
reopening record and remanding proceeding to the Regional
Director for hearing to be held by the Administrative Law
Judge for the purpose of and limited to receiving such newly
discovered evidence referred to in the Charging Party
Union's motion in the court of appeals.
A hearing in the remanded case ' was held before the Ad-
ministrative Law Judge on August 27 and 28, 1974, at Red-
ding, California. All parties appeared and were afforded full
I The Regional Director for Region 20 consolidated this case for hearing
with objections and challenges in Cases 20-RD-747 and 20-RM-1579 On
motion of the Respondent at the hearing, those two R-cases were severed
from this case, and hearing on the R-cases was postponed indefinitely
opportunity to adduce evidence, to examine and cross-exam-
ine witnesses and to argue orally on the record, Briefs submit-
ted by the Union and Respondent have been carefully consid-
ered.
Upon the entire record in the case- and from my observa-
tion of the witnesses and their demeanor, I make the follow-
ing:
FINDINGS OF FACT
A. The Issues
(1) Whether strikers H. E. Glaze, P. E. Sizemore, L. N.
Benich, and E. Blakesley were discharged from employment
by the Respondent on September 29, 1970, because they went
on strike on September 29, 1970; (2) whether nine other
strikers were terminated by Respondent on other dates in
October 1970; (3) whether the strike is an unfair labor prac-
tice strike and if so as of what date.
B. Preliminary Statement
Before the court of appeals, the Union moved that the case
be remanded to the Board to take newly discovered evidence
which, the Union contended, would show that four striking
employees, namely, H. E. Glaze, P. E. Sizemore, L. N. Be-
ech, and E. Blakesley, had received documents from the
Respondent in late July or early August 1973, indicating that
they had been terminated by the Respondent on the first day
of the strike, namely September 29, 1970. The documents
show on their face that they were forms utilized by the Re-
spondent in the cash distribution of profit-sharing funds for
terminated members, and it is undisputed that these forms
mailed to the four above-named strikers accompanied checks
representing the cash distribution to the striker from the
profit-sharing plan. These forms to the four strikers carried
the information in the upper left-hand corner of the form
"Date Terminated-9-29-70." On the face of the form. among
other printing, was the following printed language "In Ac-
cordance with the terms of the Montgomery Ward Profit-
Sharing Plan, relating to termination of employment with the
Company, you are now entitled to receive the value of your
share in the plan." In its motion to remand before the court
of appeals the Union contended that these four
documents-as newly discovered evidence-were material
for two reasons: (1) they were relevant to the question of
whether the Respondent violated Section 8(a)(1) and (3) of
the Act in its treatment of the strikers and (2) they were
relevant to the question of the credibility of witnesses who
have testified as to various threats made by the Respondent,
since these documents corroborate such witnesses, and reflect
on whether the strike was an unfair labor practice strike.
The Profit-Sharing Plan
The Respondent's profit-sharing plan is administered by
the Respondent's compensation and benefits department
located in Chicago, Illinois. This profit-sharing plan was in
effect at the Redding store before the inception of the strike
on September 29, 1970. The Respondent alone makes the
contributions to the plan, and it makes such contributions
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only when the employee is receiving wages for work per-
formed. If an employee for any reason does not receive wages
for work performed, the Respondent does not make a contri-
bution to the plan for that employee. The employee does not
have the option to make contributions. But for one exception,
it can be said that no money goes into the plan unless the
employee is actively working and receiving wages. The excep-
tion arises in the case of an employee who participates in the
Respondent's long-term disability plan, an insurance plan,
and becomes disabled under the long-term disability insur-
ance plan. In that case, contributions from the long-term
disability trust fund are made in that disabled employee's
behalf to the profit-sharing plan. With respect to an em-
ployee-participant in the profit-sharing plan who went on
strike on September 29, 1970, and never returned to work for
the Respondent, and was not on long-term disability, then as
to that striking employee, there would be no money con-
tributed by the Respondent to the plant or accepted from the
employee as a payment to the plant.
With respect to this profit-sharing plan, individual annual
statements are furnished to each of the eligible employees
showing such individual's accumulated interest in the plan.
The profit-sharing plan consists of three funds, the A fund for
interest bearing securities, the B fund for common stocks, and
the C fund for Marcor stock, Respondent's parent corpora-
tion. On these annual statements, there is also information
concerning retirement benefits. The funds fluctuate with the
market value of the stocks and securities held in the trust
fund. With certain exceptions in hardship cases not relevant
here, only employees who are separated from service with
Respondent may receive a cash distribution of their profit-
sharing funds. In all cases of separation, the separated em-
ployee automatically, receives the profit-sharing cash distribu-
tion without the necessity of making a request for it. As a
rule, employees, including strikers, cannot receive a cash dis-
tribution unless they first resign or are otherwise separated
from employment.
C. Circumstances Refuting the Claim that the Four Named
Strikers were Discharged 9-29-70
May 1971; the 1971 reports mailed in April or May 1972, and
the 1972 reports mailed in April or May 1973.
It would be incongruous to say that the four named strik-
ers, Glaze, Blakesley, Sizemore, and Benich were discharged
on 9-29-70, the first day of the strike, in the face of the fact
that they were sent annual reports for 1970, 1971, and 1972
advising them of their current interest in the profit-sharing
and retirement funds. In this connection, it should be noted
that profit-sharing funds are automatically disbursed to sepa-
rated employees The fact that the Respondent retained their
funds and annually after the strike kept the four strikers
advised as to the current status of each of their interests in
the funds is significant evidence that they had not been dis-
charged on September 29, 1970.
Additionally, the testimony of Store Manager Hanks, As-
sistant Labor Relations Director Philbin, and Operating
Manager McClure that none of the strikers except one named
Lamar Thompson were discharged during the course of the
strike stands uncontradicted except for the documents ac-
companying the profit-sharing distribution to the four named
strikers showing the termination date 9-29-70 for these four
strikers, and nine other strikers showing termination dates in
October 1970.
In addition to the foregoing reasons which militate against
the contention that the four strikers named in the motion to
remand were discharged on September 29, 1970, is the credi-
ble and uncontradicted testimony of Assistant Labor Rela-
tions Director Philbin, explaining the circumstances under
which the profit-sharing funds were disbursed,to these four
strikers and his reasons for making the distribution. In this
connection, it should be noted that during the course of the
strike involving approximately 90 strikers, the Respondent
continued to transmit the individual statements to the strikers
concerning the current status of their profit-sharing funds. It
also offered many of them their jobs without prejudice to
their seniority status. For example on December 1, 1971, it
wrote this letter to 61 strikers, including the 4 strikers named
by the Union in its motion for remand, as well as 8 of the 9
other strikers' names mentioned here.
December 1, 1971
Relative to the question whether the four strikers named
in the Union's remand motion to the court of appeals, namely
Glaze, Sizemore, Benich, and Blakesley, who, the Union
claims, were discharged on September 29, 1970, the first day
of the strike, as is evidenced by the document accompanying
the check in distribution of that striker's interest in the profit-
sharing fund, there are numerous circumstances which refute
the Union's claim.
Initially it is observed that these four strikers named in the
Union's remand motion did in fact, with all other employees
under the plan, receive annual statements from the Respond-
ent for the years 1970, 1971, and 1972, showing the annual
status of Fund A, Fund B, Fund C, and the total dollar
amount of their interest. Additionally, the annual reports also
showed the status of the employees' interest in the retirement
plan. (Copies of these annual reports on the plans may be
found in the record as Resp. Exhs. 5, 6, 7, and 8) The annual
statements were mailed to all employees including the strikers
Dear
As you are aware, many of your fellow employees have
crossed the picket line and returned to work for Mont-
gomery Ward. As openings occur, we expect more em-
ployees to cross the picket line and come back to work.
It would therefore be helpful if you would advise us
whether or not you would come back to work immedi-
ately if the same or comparable job that you held before
the strike is available to you now.
Please mark the appropriate box of the enclosed post-
card so that we will be able to employ you as soon as
openings do occur.
Sincerely yours,
in April or May of the succeeding year. Thus the 1970 reports F. C. Hanks
were mailed to individual employees and strikers in April or Store Manager
MONTGOMERY WARD & CO., INCORPORATED 235
On March 27, 1972, Respondent wrote the following letter
to 17 striking employees, among whom were included 8 of the
strikers who were subsequently, in July or August 1973,
mailed profit-sharing checks and termination notices, namely
Arrowsmith, Benich, Clyde, Foss, Friend, Rusted, Stratford,
and Wallace.
March 27, 1972
Dear
We are offering you your former job in your former
department at your previous rate of pay plus any in-
creases which would have been given to you had you
remained at work throughout your work stoppage at the
Redding store . In addition you will be returning with the
same seniority rights that you had at the time you joined
in the work stoppage against Ward 's Redding store.
If you are accepting this job, and are ready to report to
work on [ 7 days from the date of this letter] , contact Mr.
Donald McClure, the Redding store Operating Manager
at 916-241-6522. If you are not ready on [ 7 days from the
date of this letterj , the job will not be held for you.
Very truly yours,
F. C. Hanks
It became evident to the Respondent as late as March 30,
1972, that many strikers were rejecting offers of reinstate-
ment. The following letter from one of the strikers dated
March 30, 1972, addressed to the Respondent is typical of a
number of replies in uniform language from strikers:
March 30, 1972
Mr. Fred Hanks, Manager
Montgomery Ward & Co.
300 Locust Street
Redding, California 96001
Dear Sir:
Your offer of March 27, 1972 is rejected because time
limits set in this letter are unreasonable and because you
have not, to my knowledge, offered all other strikers
their jobs back.
I believe Wards should offer jobs to all the strikers and
that as unfair labor practice strikers, we have the right
to return as a group.
I am interested in further employment with Wards
and desire to return to my old fob.' ]1 am not abandoning
my job with Wards. I will gladly accept offer if you will
make comparable offer to all other strikers.
Very truly yours,
Michael L. Anderson
Certified #745234
In reply to a letter from striking employee Jack E. Littleton
to Respondent dated August 7, 1973, questioning whether
the disbursement of his "retirement fund" was sufficient and
inquiring the reason for his termination set forth in the letter
accompanying his retirement check, the Respondent's
Chicago office, under Philbin's direction, replied by letter
dated September 6, 1973, in pertinent part as follows:
Your contributions to the Company's Retirement
Plan was returned because there exists no reasonable
expectancy of reemployment by the Company. In fact,
you have never been terminated but only permanently
replaced. The Company did not consider it appropriate
to return your contributions to the Retirement Plan un-
less there existed a reasonable expectancy of your re-
sumption of participation in the Plant which, of course,
could only be accomplished by your reemployment.
The Respondent's Decision to Distribute the
Profit-Sharing Funds to Strikers
Mr. Philbin, Respondent's assistant labor relations direc-
tor, testifies credibly that he initiated the action to disburse
to the four strikers named in the Union's remand motion as
well as nine other named herein, their accrued interest in the
profit-sharing plan. Philbin testified that some time in 1973,
he had occasion to consider whether refunds should or should
not be given under the profit-sharing plan to eligible em-
ployees at Respondent's Redding, California, store who were
still on strike. Philbin testified he had become aware that
some strikers had requested a refund of their profit-sharing
funds, and the Respondent had denied those refunds at the
time unless they resigned.' Philbin testified further that fol-
lowing the Board's affirmance of the Administrative Law
Judge's Decision in this case, it became apparent to him that
there existed no reasonable expectancy that those strikers
who continued to strike would return to active employment
with the Respondent. This consideration, according to Phil-
bin's testimony, developed out of the fact that responses to
offers of employment by these remaining strikers had been
uniformly that "I will return when the Company accepts all
the strikers back at the same time, or I will not return."
Philbin testified further that in consideration of the Board's
Decision holding that these strikers were economic strikers
and were not entitled to immediate reinstatement, he con-
cluded that the strikers had no reasonable expectancy of
returning to active employment, and it would serve no pur-
pose for Respondent to continue to refuse to disburse profit-
sharing funds.
Philbin testified that based on these consideratons, he de-
cided that the Respondent should disburse profit-sharing
funds to the remaining strikers. In June 1973, he contacted
the management of the Redding store and asked for a list of
current strikers participating in the plan, the date that the
striker was permanently replaced if that was the fact, and if
the striker had never been replaced, in that case, the last day
he worked. This information was supplied by the Redding
store to Philbin in the early part of June 1973. He then
directed a Mr. Joe Doyle in the Respondent's compensation
department in Chicago to prepare disbursements to profit-
sharing and retirement funds to the strikers, to be mailed to
the Redding store in sealed envelopes for mailing to the strik-
2 For example, on November 30, 1972, the Respondent advised striker
Pearl E. Sizemore by letter that they were unable to comply with her request
for disbursement of her profit-sharing funds unless she made a written
resignation
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ers. Philbin testified that the forms (appearing in the record
as Union Exhs_ 1 to 13) were then in general-use,by the
Respondent in disbursing profit-sharing funds to terminated
employees. Although none of these strikers had in fact been
discharged , according to Philbin 's credible testimony , he nev-
ertheless instructed Mr. Joe Doyle in the compensation and
benefits department in Chicago to use the date of September
29, 1970, as "Date Terminated" (see Union Exhs. 1 to 4 in
the record) for strikers Glaze, Sizemore, Benich and Blakes-
ley because those employees had not yet been permanently
replaced and because September 29, 1970, was in fact their
last day worked. With respect to the other nine strikers,
namely Clyde, Arrowsmith, Friend, Foster, Wallace, Foss,
Stratford, Husted, and Olsen, (see Union Exhs. 5-13). Phil-
bin instructed Doyle to show as "Date Terminated" the date
that the particular striker had been permanently replaced.
Accordingly, the profit-sharing distribution forms mailed to
these nine employees bore different termination dates in Oc-
tober 1970, which were in fact dates on which these nine
strikers were permanently replaced.3 Philbin testified fur-
ther that he never gave any instructions to the Redding store
to terminate these 13 people; the instructions were merely to
mail these forms to the strikers with the accompanying profit-
sharing disbursement checks as prepared by the compensa-
tion and benefit department in Chicago.
Analysis and Conclusionary Findings
Assistant Labor Relations Director Philbin testified that in
mailing out in July 1973, the profit -sharing checks to the 13
strikers above mentioned, accompanied by the profit-sharing
plan statement of cash distribution for terminated member
(see Union Exhs. R-1 to-13 in the record), that he intended
only to disburse the cash value of the strikers' vested interest
in the plan, but not to discharge the strikers . The employee's
service record (Resp . Exhs. 12-A to 12-M) taken from the
personnel files for each of the individual strikers to whom
disbursements were made in July or August 1973 (see Union
Exhs. 1-13 in the record) in corroboration of the Respon-
dent 's witnesses , shows no record of termination of these 13
strikers . It is true that what Philbin accomplished in the case
of these 13 strikers concerned in this matter was to disburse
profit-sharing funds to each of them without requiring that
they resign as had been the practice theretofore." Instead of
seeking their resignation , he assigned termination dates as I
have above described.
Rather than carry the vested interest of these 13 strikers in
the profit-sharing plan indefinitely into the future when it
appeared, according to Philbin 's testimony that "they had no
reasonable expectancy of returning to active employment"
with the Respondent , Philbin decided to distribute their
vested interest without requiring their individual resigna-
3 Respondent 's personnel records show that the Respondent made job
offers to Bedich on 4-12-72, to Clyde on 4-28-72; to Arrowsmith on 3-27-72,
to Friend on 3-6-72; to Wallace on 4-12-72, to Foss on 3-27-72; to Stratford
on 4-12-72, and to Husted on 3-6-72.
4 See, for example the Respondent letter (Resp . Exh. 4) of November 30,
1972, to striker Pearl E . Sizemore declining to disburse her profit-sharing
and retirement plan moneys unless she voluntarily resigned.
tions. But the means used by Philbin , namely to show a
termination date for the four unreplaced strikers, Glaze,
Blakesley, Sizemore, and Benich, as the last day they worked,
(September 29, 1970) and the other nine strikers as the date
each was replaced in October 1970, could very well have
given these strikers the impression that the Respondent, in
making the cash distributions , was terminating each of them
retroactively to the dates shown on the cash distribution
forms which accompanied the checks. It is evident, however,
from the past conduct of the Respondent vis-a-vis these strik-
ers, namely in importuning them to return to work and in
offering return to their jobs and in keeping their profit-shar-
ing account current that the Respondent had not considered
the strikers as terminated in September and October 1970. It
must be remembered that there is a total absence of any
evidence that these 13 strikers individually or as a group ever
unconditionally applied for reinstatement. To the contrary it
appears from the record in the original hearing that the offer
made by the Union to return to work was conditioned on all
of the strikers including those who had been replaced being
taken back by the Respondent as a group. (See Administra-
tive Law Judge 's Decision .) Additionally, the record shows
without dispute that on December 1, 1971, the Respondent
sent letters to 12 of the 13 strikers with whom we are con-
cerned here, inquiring whether or not they would return to
work immediately if the same or a comparable job were avail-
able; and on various dates in March and April 1972, the
Respondent made job offers to 8 of the 13 strikers involved
in this remanded hearing. Additionally it is shown that the
Respondent continued the profit-sharing and retirement
plans in force during 1970, 1971, and 1972, for the 13 strikers
involved in this remand, something which they would not
have done had they terminated the 13 strikers in September
and October 1970.
It is well established that an employer may not discharge
economic strikers because they are striking. Relying on
N.L.R.B. v. International Van Lines, 409 U.S. 48 (1972), the
Union contends that the Respondent violated Section 8(a)(1)
and (3) in terminating Blakesley, Sizemore, Benich, and
Glaze, the Union contending that they were terminated on
9-29-70 because they went on strike on that date. It cannot
be doubted that Philbin's completing the date of the "Date
Terminated" on the disbursement form created ambiguities
which might have led one to believe that the strikers had been
terminated on the dates shown on the form. Instead, Philbin
would have been better advised if he had no intention to
terminate these strikers, not to have used the "Date Ter-
minated" space and preferably should have advised the 13
strikers that they were not being terminated. It is understand-
able, however, that strikers receiving such a notice would
conclude that they had been terminated retroactively to the
dates shown on the form. Although Philbin testified he did
not intend to terminate the strikers but merely to disburse
their profit-sharing funds, I do find nonetheless, that the
distribution of the profit-sharing funds accompanied by the
termination notices to these 13 strikers would reasonably lead
the striking employees to believe that they had been dis-
charged. Sending the termination notices, in my opinion,
violated Section 8(a)(1) of the Act and coerced and restrained
the strikers in the exercise of their rights guaranteed in Sec-
tion 7 of the Act to engage in strikes and other concerted
MONTGOMERY WARD & CO., INCORPORATED 237
activity for collective-bargaining purposes and for their
mutual aid and protection.'
This newly discovered evidence of events which occurred
in July 1973 leads me to conclude that the aforesaid Section
8(a)(1) conduct converted the strike into an unfair labor prac-
tice strike in July or August 1973 and thereafter. See
N.L.R.B. v. International Van Lines, 409 U.S. 48 (1972).
As profit-sharing funds under the profit-sharing plan can
be distributed only upon an employee's separation from em-
ployment, it-is reasonable to conclude, and I find that Philbin
terminated these 13 strikers so as to enable the Respondent
to distribute the profit-sharing funds to them. Philbin's stated
reason for doing this, namely his opinion that "there existed
no reasonable expectancy of the strikers returning to active
employment with the Company," did not legally justify the
termination of the strikers' employee status as defined by
Section 2(3) of the Act which provides that the term "em-
ployee ... shall include any individual whose work has
ceased as a consequence of or in connection with any current
labor dispute .. . .
The Respondent's notice of termination of the employment
of the 13 strikers, therefore, violated Section 8(a)(1) and (3)
of the Act, and the strikers thereby became unfair labor
practice strikers with the receipt of such termination notices
and profit-sharing checks sometime in July or August 1973.
N.L.R.B. v. International Van Lines, supra.
It is reasonable to conclude that with the Respondent's
disbursement of the profit-sharing funds together with the
accompanying termination notice to these 13 strikers who
had been on strike since September 29, 1970, the Respondent,
in effect, was notifying them that their employer-employee
relationship had terminated.
I am of the opinion that Mr. Philbin misconceived the
rights of these 13 strikers to continue to withhold their ser-
vices in the course of the current labor dispute.' The fact
that Mr. Philbin concluded that "there existed no reasonable
expectancy of the strikers returning to active employment
with the Company" did not legally justify action destructive
of important employee rights, namely the right of striking
employees to retain their status as employees. The fact that
these strikers had by July 1973 withheld their services for
almost 3 years in no way impaired their continued right to
strike.
Even those strikers who had been replaced still possessed
potential reinstatement rights. See The Laidlaw Corporation
v. N.L.R.B., 414 F.2d 99 (C.A. 7, 1969), enfd. 171 NLRB
1366 (1968); N.L.R.B. v. Fleetwood Trailer Co., 389 U.S. 375,
66 LRRM 2737 (1967). Obviously, a notice of termination,
such as the Respondent mailed to the 13 strikers, dis-
criminated against them because of their assistance to the
Union and discouraged their strike activity. International
Van Lines, 409 U.S. 48. Although the Respondent may have
5 The Union did not call any of the 13 strikers who had received these
profit-sharing distribution forms to testify, and we do not have the benefit
of their understanding of the meaning of such forms Nevertheless, I would
find that the language of the distribution notice would tend to lead the
recipient of it to believe that he or she had been terminated See, for exam-
ple, N.L.R.B v Hilton Mobile Homes, 387 F.2d 7 (C A 8, 1967), and cases
cited.
6 In July and August 1973, the strike was still in progress and the Union
continued to picket the Respondent's store at Redding Pickets were not
withdrawn until January 1974.
been motivated to terminate the 13 strikers in question for the
purpose of disbursing their profit-sharing funds which it did
not wish to retain indefinitely, it cannot be gainsaid that such
notices of termination were destructive to the employee status
of the involved strikers. Where the employer's action is de-
structive of important employee rights, the employer's moti-
vation becomes irrelevant in determining the violation. See
N.L.R.B. v. Erie Resister, 373 U.S. 221 (1963); N.L.R.B. v.
Great Dane Trailers, 388 U.S. 26 (1967). What the Supreme
Court said in N. L. R. B. v. Great Dane Trailers, Inc., supra, is
applicable here:
From this review of our recent decisions, several prin-
ciples of controlling importance here can be distilled.
First, if it can reasonably be concluded that the em-
ployer's discriminatory conduct was "inherently de-
structive" of important employees rights, no proof of an
antiunion motivation is needed and the Board can find
an unfair labor practice even if the employer introduces
evidence that the conduct was motivated by business
considerations.
So, in the case at bar, even though Mr. Philbin was moti-,
vated to disburse profit-sharing funds to strikers who he be-
lieved had no reasonable expectancy of returning to active
employment, his means of accomplishing that, by termina-
tion notices, was so "inherently destructive of important em-
ployee rights" so as to preclude the necessity of proof of
antiunion motivation. It appears to me, moreover, that if Mr.
Philbin had been interested solely in disbursing profit-sharing
funds to these 13 strikers, he could have accomplished the
objective without the termination notices. Indeed, in the case
of striker Jack E. Littleton, where a distribution of his vested
interest in the profit-sharing plan was made in September
1973 (see Union Exh. 18), the accompanying notice struck
out with X's the word "TERMINATED," and the Respon-
dent's benefit and compensation manager in his letter of
November 20, 1972, to Littleton (Union Exh. 19) explained
that the distribution was handled as a "withdrawal."7
THE REMEDY
Having found that by the use of forms accompanying the
profit-sharing checks to the 13 strikers indicating that four of
them had been terminated on September 29, 1970, and the
other nine had been terminated on various dates in October
1970, and that such action by the Respondent discriminated
against employees in violation of Section 8(a)(3) of the Act
and restrained and coerced employees in the exercise of rights
guaranteed in Section 7 of the Act, all in violation of Section
8(a)(1) and (3) of the Act, I shall recommend that Respond-
ent cease and desist therefrom and that it take certain affirma-
tive action designed to effectuate the policies of the Act.
As I have found the remaining strikers became unfair labor
practice strikers in the month of July or August 1973 and at
all time thereafter, I shall require the Respondent in event
any striker or strikers, individually or in a group, uncondi-
tionally offer to return to work, to reinstate such striker or
strikers to their former positions, or if unavailable, to sub-
stantially equivalent positions, without prejudice to their
I The last sentence of the letter reads as follows: "You will note in the
upper left-hand corner of the statement, date terminated has been blocked
out because this is handled as a withdrawal "
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seniority or other rights and privileges , dismissing, if neces-
sary, replacements to make room for their return , Failing
within 5 days to reinstate any striker or strikers who uncondi-
tionally offer to return to work, the Respondent shall make
him or her whole for any loss- of earnings each may suffer as
a result of its failure to reinstate such employee, by payment
of a sum of money equal to that which such employee would
earn as wages from the Respondent from the date of the offer
to return to work until such date of reinstatement , less net
earnings during that period, with backpay and interest
thereon to be computed in the manner prescribed by the
Board in F W. Woolworth Company, 90 NLRB 289 (1950),
and Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
CONCLUSIONS OF LAW
1. By accompanying profit-sharing checks to 13 strikers
with forms indicating that they had been terminated, the
Respondent violated Section 8(a)(1) and (3) of the Act.
2. The strike which remained an economic strike from its
inception on September 29, 1970, became an unfair labor
practice strike on and at all times after July or August 1973.
[Supplemental Order omitted from publication.]