Montgomery Ward & Co.

In the Matter Of MONTGOMERY WARD & COMPANY and REUBEN LITZENBERGER, et al. Case No. C-176.-Decided October 29, 1938 General Merchandising Mail Order Business-Interference, Restraint, and Coercion: propaganda against union ; anti-union statements ; employment of labor spies ; employer ordered to cease employing detectives to investigate activities of employees in behalf of labor organizations-Discrimination: dis- charge of union members ; charges of, not sustained as to certain employees- Reinstatement Ordered-Back Pay: awarded-Company-Dominated Union: com- plaint dismissed as to-Collective Bargaining : complaint dismissed as to charges of failure to bargain collectively. Mr. A. Norman Somers, for the Board. Dey, Hanzpson, Nelson d Young, by Mr. Clarence J. Young, of Portland, Oreg., and Mr. Stuart S. Ball, of Chicago, Ill., for the respondent. Gross & Anderson, by Mr. Harry L. Gross, and Mr. Ben Anderson, of Portland, Oreg., and M. Anthony W. Smith, of Washington, D. C., for the Union. Mr. Julius Schlesinger, and Mr. Allan R. Rosenberg, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed by Reuben Litzenberger, Neil McLeod, and William H. Shook, members of Weighers, Warehousemen, & Cereal Workers' Local 38-123 of the International Longshoremen's Associa- tion, herein called the Union, the National Labor Relations Board, herein called the Board, by Charles W. Hope, Regional Director for the Nineteenth Region (Seattle, Washington), issued its complaint, dated February 3, 1937, against Montgomery Ward & Company, Incorporated, Portland, Oregon, herein called the respondent, alleg- ing that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. 9 N. L. R. B., No. 50. 538 DECISIONS AND ORDERS 539 In respect to the unfair labor practices the complaint alleged in substance (1) That the respondent had discharged and refused to reinstate 34 named employees because of their membership in and assistance in behalf of the Union, thereby discouraging membership in a labor organization., (2) That the respondent had attempted to promote, foster, and otherwise interfere with the formation of a labor organization of its employees. (3) That the respondent had publicly stated on November 6, 1936, and has many times since then, both publicly and privately, stated that it Will not bargain with any labor organization. (4) That the respondent by these and other enumerated acts and statements had interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act. The complaint and accompanying notice of hearing were duly served upon the parties. On February 19, 1937, the respondent filed a motion to dismiss the complaint in which it alleged that the Act was unconstitutional. The respondent also filed an answer to the complaint in which it admitted some of the specific acts alleged therein but denied that it had engaged in unfair labor practices. Pursuant to notice a hearing was held at Portland, Oregon, on March 17, 18, 19, 22, 23, and 24, 1937, before Towne J. Nylander, the Trial Examiner duly designated by the Board.2 The Board, the respondent, and the Union were represented by counsel and partici- pated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to produce evidence bearing upon the issues was afforded to all parties. During the course of the hearing, on the basis of three supplementary charges which had been filed by the charging parties, the complaint was amended by including therein the names of 18 additional employees whom it was alleged the respond- ent had discharged and refused to reinstate because of their member- ship in and assistance in behalf of the Union.3 The respondent's motion that its answer to the original complaint be permitted to serve as an answer to the amended complaint was granted. 1 Truman B . Boren, Lloyd Haggblom, Marion Lewis , Neil McLeod , Ray McLaughlin, James K. Navarra, Edward A . Pohl, James Vanderhoof , Jr., William Keller, Adolph S. Peterson , William Watson , J. A Herne, Jr., Glenn Bolich , Donald Lind , Mary Lazuck, Minnie Landsberg, Arthur Morey, Melvin Anderson, Floyd Anson, Dale Fields, Fred Ga- dotti, Ray Haaga , Terrence Harding, Reuben Litzenberger, Wayne W. Markkanen , Kenneth W. Martig , Howard Schippers , John Schleining , Leonard Signett, George Stanich, Riley Sanders , Howard E Pitzer, William Shook, and Erven Klooster. ' 2 The hearing , originally scheduled for February 15, 1937, had been twice postponed. 3 Paula Al. Hill, Mac E. MacGregor , Conrad W. Yost, Anthony C. Salta , Ray J . Hoffman, Ronald D Barrie , Roy Henrickson , Kenneth Smith, Robert W. Strudgeon , William Stubbs, Inga Thompson , Noble S . Powell, Vincent W. Stachniewicz , Harold L . Arthur, Dick Nemyre, Horton P. Bacon, Louis Straub , and Edward Struznick. 540 NATIONAL LABO1t RELATIONS BOARD During the course of the hearing, exceptions were taken by the parties to various rulings of the Trial Examiner on motions and on objections to the admission of evidence. At the conclusion of the- hearing the respondent renewed, the motion to dismiss the complaint which it had filed prior to the hearing for the reasons stated therein, moved to strike the testimony of all the employees named in the com- plaint who had testified except the three who had signed the charge on the ground that they were not parties to the proceeding, and moved to strike the evidence relating to all the employees named in the com- plaint for stated constitutional reasons and on the ground that by signing individual contracts of employment terminable at will they had waived their rights Linder the Act. These motions were denied by the Trial Examiner. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. All rulings of the Trial Examiner are hereby affirmed. Following the hearing, by a stipulation entered into between the parties, the record was reopened to permit the admission into evidence of certain documents concerning the business of the respondent"'and the distribution of retail sales in the United States. The stipulation was subject to an objection on the part of the respondent that such documents are irrelevant, immaterial, and incompetent. The objec- tion is hereby overruled. On May 4, 1937, the Trial Examiner filed his Intermediate Report. He found that the respondent had discharged 51 employees because of their membership in the Union, and that it had interfered with, restrained, and coerced its employees in their exercise of the rights guaranteed in the Act. He found further that by virtue of such acts the respondent had engaged in unfair labor practices within the mean- ing of Section 8 (1) and (3) of the Act. He recommended that the respondent cease and desist from such unfair labor practices, reinstate 41 of such employees with back pay from the date of their discharge to the date of their reinstatement, and reinstate ten other employees- with back pay from February 1, 1937, to the date of their reinstate- ment. The Trial Examiner found that Adolph Peterson, one of the- employees named in the complaint, had not been discharged because! of his membership in or activities in behalf of the Union and recom- mended the dismissal of the complaint with respect to Peterson. Re• also recommended the dismissal of the complaint with respect to the, alleged violations of Section 8 (2) and (5) of the Act concerning, which no evidence had been introduced at the hearing. The respondent thereafter filed exceptions to the Intermediate Re- port and to the record in the proceeding. Briefs have been filed by both the respondent and the Union. On July 5, 1938, after notice to the parties, a hearing for the purpose of oral argument was held before the Board, in which the respondent and the Union participated. DECISIONS AND ORDERS 541 We have reviewed the respondent's exceptions and save as consistent with the findings, conclusions, and order, hereinafter set forth, find them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT - 1. THE BUSINESS OF THE RESPONDENT Montgomery Ward & Company, Incorporated, is an Illinois corpo- ration, having its principal executive offices in Chicago, Illinois. It is engaged in the distribution of merchandise through the media of mail-order houses and retail stores. In connection with such distribu- tion, it owns, operates, or maintains nine mail-order houses, four mail- order warehouses, 52 order offices, and 540 retail stores scattered throughout the United States. About 20,000,000 customers scattered throughout the United States and many foreign countries are served, by the respondent. The re- spondent's net sales for the fiscal year ending January 31, 1936, amounted to $293,042,357. The Portland, Oregon, plant of the respondent with which this proceeding is concerned consists of a mail-order house, herein called the House, and a retail store, herein called the Store. Virtually all of the merchandise distributed by the Portland House and Store is shipped into Portland from points outside the State of Oregon. Cal- culated on an average of 30,000 pounds per car, approximately 230 carloads of merchandise per month, during November and December 1936, were received at the Portland House. The House acts as a distributing agency to approximately 500,000 mail-order customers located in the "Portland Mail Order House Territory," consisting of the States of Oregon and Washington, the western half of Montana, all but a small portion of Idaho, and the Territory of Alaska. It also serves as a warehousing and distribut- ing agency for the various retail stores operated by the respondent in its retail "Region No. 5," consisting of the States of Montana, Idaho, Washington, Oregon, and Arizona. About 60 per cent of the cus- tomers served through the mail-order department live outside the State of Oregon and 31 of the 45 retail stores in Region No. 5 are located in other States. Between 2,000 and 2,100 workers were employed in the Portland House in December 1936. The yearly average is between 1,200 and 1,400. The cost value of the merchandise handled by the House in the year ending January 31, 1937, was $12,479,398. The Portland Store, though located in the same building as the House, is operated as a separate and distinct unit. It is under the direction of a retail manager whose immediate superior is located in 542 NATIONAL LABOR RELATIONS BOARD Oakland, California, as distinguished from the House whose manager is under the jurisdiction of the mail-order superintendent in Chicago. The bulk of the merchandise sold by the Store is received from points outside the State of Oregon. More than 99 per cent of its sales are .made within the State. In its oral argument before the Board, counsel for the respondent stated that it was not questioning the jurisdiction of the Board over either its House or Store. II. THE ORGANIZATION INVOLVED Weighers, Warehousemen, & Cereal Workers' Local 38-123 of the International Longshoremen's Association is a labor organization af- filiated with the American Federation of Labor. It admits to mem- 'bership employees of the respondent's Portland mail-order house and fetail store. III. THE UNFAIR LABOR PRACTICES A. Intimidation and coercion About November 1, 1936, the Union commenced an organization drive among the employees of the respondent's Portland House and Store. The drive met with immediate success and within a few days a large number of the workers became members. On November 6, the Union held a mass meeting which was attended by several hundred of the respondent's employees. The respondent, considerably alarmed over the situation, took im- mediate steps to combat the union drive. Norman K. Patton, its Portland House manager, called a meeting of the employees and read to them a statement of the respondent's personnel policy. This state- ment, obviously designed to influence the workers against joining the Union, reads in part as follows : We recognize the rights of our employees to join or refrain from joining any organization as they see fit. We sincerely be- lieve that there is no advantage to you in joining any outside or- ganization and it represents an unwise expense to you. It is our long established policy to enter into no business agree- ment with any outside organization in view of our policy of fair -dealing and open frank discussions with our own people. It is not believed there is anything whatever to be gained by such a contract nor is there any legal requirements for it. We will not permit any organization whatever to dictate our wage rate, the right of hiring or dismissal, nor any of our per- sonnel policies. The meeting proved unsuccessful, however, and many of the union members began wearing their union buttons within the plant. On DECISIONS AND ORDERS 543: November 9, 1936, the respondent, attempting to practically demon- strate its statement that the workers would gain no advantage through. joining the Union, announced a blanket wage increase retroactive to^ November 6. Pursuant to instructions received in a teletype message from C. W. Harris, the respondent's vice president in Chicago, indi- vidual announcements of their raises were immediately distributed: to the employees. On November 10, 1936, J. D. Bullock, the assistant mail-order oper- ating manager of the respondent, arrived in Portland to take charge- of the respondent's campaign against the Union.4 After acquainting, himself with the Union's position in the plant through conferences- with Patton and various department heads, Bullock, on November 11, addressed the House employees in 16 groups and, on the following day,. the Store employees in three groups. His address consisted in the, main of statements designed to influence the workers against joining. the, Union. It leads in part, as follows : Yesterday and today, as I have gone through the House and, Store I have had a mixed feeling of pleasure and sorrow. Pleas- ure to be back with you, and sorrow occasioned by the many ugly rumors that have reached me. Among these rumors are the following. I heard it rumored that organizers of some outside labor organization had made broad promises of increases in pay, shorter hours and improved, working conditions to many of our employees and had inter-- ested them in joining this outside labor organization. I heard; the rumor that a number of our employees felt they had more to. gain by following the leaders-of this outside organization than, the supervisory forces of this House and Store. I heard the rumor that organizers of this outside labor union, have promised a union shop or closed shop, hiring hall or prefer- ential hiring to employees. I have explained the Company's personnel policy on the matter of the closed shop, or hiring hall,, or preferential hiring. Let me repeat that while any employee may belong or refrain from belonging to a union, we will not, as a Company, take the position that all employees must belong to a Union. Among the many rumors which reached me, the most ugly one was that a strike was being planned in this House and Store. In regard to that eventuality, let me say this to you, if a part or all of the employees of the Portland House, and Retail Store go on a strike of any nature or a walk-out or form a picket line Bullock bad previously served as manager of the Portland House from February 1933 to January 1936 a 544 NATIONAL LABOR RELATIONS BOARD around this building, those employees by their action will close the Portland Mail Order House and Retail Store indefinitely. My reason for this statement is that neither I nor anyone else will ask any employee to come to his or her job through a picket line and incur the risk of possible violence. Currently the Portland Mail Order House is doing about 7% of the total Mail Order volume of this Company and I believe you will agree with me that the U. S. Mails will continue to move and that the other Houses, doing 93% of our Mail Order Business will be able to handle the approximate 7% clone by this House. Please understand that we want no trouble and will do all in our power to keep from having trouble. Your recent pay in- creases, effective November 6, are proof of the fact that Wards does pay equal to or better than the majority of other com- panies for the same or similar types of work . As tb ' promotions from within the Company, there have been more than 100 in the Portland Mail Order House since January 1, 1936. As to wages and hours we have no quarrel but we never have operated and do not intend to operate under a Union shop , closed shop or preferential hiring, or hiring hall plan. There will be no lockout but if the conditions referred to before is set up by a part of the employees, I have told you what will happen. For the good of all concerned I sincerely hope that such a condition will never occur. Following, the above speech word was passed around to the em- ployees that Bullock was available in his office to employees who wished to see him. Also certain employees , including some of the active union members, were summoned to Bullock 's office. At these individual con- ferences Ballock employed various tactics to discourage membership in the Union. At some conferences he reasoned with the employees and attempted to persuade them that they would be better off if they relied en the company rather than on the Union, while at other con- ferences by attacks on the Union and its leaders he again emphasized the respondent's antagonism to the organization. On November 24 and December 7, Bullock again addressed the employees. On the former occasion he answered a series -of questions which he stated had been asked of him_ during the preceding weeks. In his answers Bullock stated among other things that the Union hoped to obtain a closed-shop agreement with the respondent but that the respondent would not agree to a closed shop ; 5 and that "the rep- resentatives of Montgomery Ward & Co. have always been willing and anxious to talk with any employee and that the employees in the past 5 The Union had not at this time made any demands upon the respondent. O DECTSIGN S AND ORDERS 545 have never 'found it necessary or desirable to form a union to receive just and fair consideration from Montgomery Ward &. Co." He also stated that plans had been made to handle the. Portland Mail Order Business at the respondent's otllel_"Houses in the event a part or all the employees of the Portland House went on strike and -formed a picket. line around the building. Bullock then added, "It may interest you to know that the-Portland House business represents about 7% of the total Mail Order business and I believe you will agree that the other Houses doing about 93 % of the business should be able tp absorb and handle the 7% represented by the Portland House." In opening the meeting of December 7, Bullock explained to the employees that the meeting had been called to inform them "of what has happened up to now and of what may happen as a result of the activities of the organizers of the Weighers, Warehousemen , and Cereal Worker's Union, Local 38-123, affiliated with the International Long- shoremen's Association." At this meeting he called the employees' attention to the following question which had been asked of him by Harry L. Gross, the uniol,'s attorney , "If the warehousing union, through an election held as provided in the National Labor Relations Act proved to the satisfaction of Montgomery Ward & Co. that 51% of the eligible employees had chosen the Warehousemen's Union as their representative for collective bargaining purposes , would Mont- gomery Ward & Co. at that time be willing to discuss ,and negotiate with representatives of the Union toward the end that some form of written agreement between the Union and Montgomery Ward & Co. would result ?" Bullock's reply was, "When and if the Warehouse- men's Union , through an election held in compliance with the National Labor Relations Act, is able to prove that 51% of all employees of the Portland Mail Order House have chosen the Warehousemen 's Union to represent them in dealing with representatives of their employer, Montgomery Ward & Co., representatives of the Company willing to eceive and give consideration to the list of demands in the same manner as they would receive and give consideration to any individual or group of employees." 6 Bullock also stated at the meeting of'De- cember 7 that following the employees' meetings held in the plant,? he In derstood'that many employees decided that they had more to gain by working with and following leaders within the House and Store than persons outside the plant. Accordingly many who had made application or joined the Union dropped out of it. Although the Union had not considered or discussed plans for a strike at any of its meetings, Bullock, in the above speeches, constantly referred to "ugly rumors" which he had heard concerning a strike at the respondent's plant: He threatened to close down the plant if a' e Italics supplied - The term "plant" is used herein to refer to both the House and Store. 546 NATIONAL LABOR RELATIONS BOARD strike occurred and handle the Portland business through other mail- order houses of the respondent. The respondent, while pursuing the anti-union tactics described above, was being kept informed of every move of the Union. In Sep- tember 1936 it engaged the services of the Burns Detective Agency to investigate some friction which had arisen between the elevator oper- ators and other employees of the House. George H. Fleming, the Portland manager of the Burns Agency, testified that one operative was assigned to the respondent's plant at that time. However, after the union drive got under way, the number was gradually increased until some 10 or 12 labor spies were employed in the plant. The Burns operatives were assigned to regular jobs within the respondent's plant where they were in a position to spy on the activities of, their fellow employees. Some of them joined the Union, spoke at union meetings and even wormed their way into meetings of the union's executive committee. Bullock admitted that lie had been receiving regular re- ports of the names of the workers attending union meetings and the number of persons present at such meetings. As result of the above activities and of the systematic discharge of union members described in Section III, B, infra, union organiza- tion among the respondent's employees was effectually crushed. 'Bullock, his job at Portland "finished," was replaced by another House manager late in January 1937. The respondent, by means of all the activities set forth above; has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The discharges Between December 22 and December 24, 1936, the respondent dis- charged a large number of employees from its Portland House and Store. The complaint, as amended, alleges and the answer denies that 52 of these employees were discharged because of their membership in or activities in behalf of the Union. The personnel records of the 52 employees named in the complaint were introduced into evidence at the hearing. Also introduced into evidence were lists, termed personnel survey sheets, which had been prepared by the respondent shortly before the actual discharges took place, showing the workers scheduled to be retained and released in several of the departments. We will first take up by departments the cases of the employees discharged from departments for which such personnel survey sheets are available. Freight Elevator Department.-Twelve persons were employed in the freight elevator department at the Portland House just prior to the discharges of December 1936. Between December 22 and Decem- ber 24, eight of the twelve were discharged. It is interesting to note DECISIONS AND ORDERS 547' that the eight employees selected by the respondent- to be released from the department were all members of the Union, while three of- the four retained were not union members. J. A. Meyers, the only- union member who was not discharged, confessed at the hearing that he was actually an operative of the Burns Detective Agency. Meyers. admitted that he had joined the Union immediately upon his employ- ment at the House in November 1936 and had regularly attended the. meetings of the Union and its executive committee. He testified that he had made regular reports to the Burns Agency concerning the- names and number of persons attending the union meetings. Elmer R. Timm and Donald E. McEwan, two of the eight workers. discharged from the freight elevator department, dropped out of the- Union immediately- thereafter. They were reinstated in the respond- ent's employ within a short time. Although four other persons were. added to the staff of the department between December 24 and the date of the hearing, Dale Fields, Howard Schippers, James K. Na- varra, Wayne W. Markkanen, Louis Straub, and James Vanderhoof,. the other six workers who had been discharged were not rehired. Two,of them, Louis Straub and James Vanderhoof, testified that their work had never been criticised. Receiving Departmnent. 'thirty-four persons were employed in the- respondent's receiving department prior to the lay-offs of December 1936. Between December 22 and December 24, 11 of the 34 were dis- charged. While only 9 of the 23 workers retained in the department. were members of the Union, all 11 of those discharged were uniowu members. None of the union men who had been laid off were rein- stated between December 24 and the date of the hearing although 10 new persons were added to the department during that time. - Neil McLeod, Reuben Litzenberger, and John Schleining, three of the workers discharged from the receiving department, testified at the hearing. McLeod, an employee who first started working for the. respondent on August 11, 1934, had received' his last previous lay-off in the spring of 1935. During a conversation with Bullock held about, November 21, he was informed that his record was a very good one. During this same' conversation, Bullock made a point of telling McLeod that the raises of November 6 had not been due to' the Union's, activities. Reuben Litzenberger, one of the active union members, began work- ing for the respondent in July 1935. With the exception of a 13-day- lay-off in December 1935, his employment was continuous from Au- gust 3, 1935, until his discharge on December 24, 1936. During No- vember 1936 Litzenberger was questioned concerning the Union on several different occasions by one of his supervisors, a man named Iunker. About this same time Fred Cane, another supervisor, asked him how he "had happened to have gotten on the wrong side of the; 134068-39-vo1 ix--36 ,548 NATIONAL LAIIOR RELATIONS BOARD fence" and, when Litzenberger attempted to defend the Union, Cane warned him, "Well, you had better think it over. It will probably take some mighty deep thinking." John Schleining was employed by the respondent from September ')1 until December 24, 1936. During this period his work was never criticized. On November 16 Schleining was summoned to Bullock's office where the latter rectified a mistake which had been made in the wage increase granted him on November 6. During their conference Bullock criticized the Union and stated to Schleining, "Personally, this $2.50 initiation fee and this monthly due that you pay into the Union, with that money I could get-myself a good bottle of whiskey and a nice girl and go out to a dance and have a hell of a good time." Lloyd Haggblom, -Riley Sanders, Melvin Anderson, Fred Gadotti, Ray McLaughlin, Howard E. Pitzer, and Floyd Anson, the other seven persons named in the complaint who were discharged from the receiving department, did not testify at the hearing. Shipping Department.-Seven of the 17 employees of the shipping department were discharged between December 22 and December 24, 1936. Although only 5 of the •10 workers retained were union mem- bers, 6 of the 7 discharged from the department -,N ere members of the Union. Two workers were added to the staff- of the shipping depart- ment between December 24 and the date of the hearing. One of them' was J. A. Meyers, the Burns detective, who was transferred to the shipping department from the freight elevator department imme- diately after the dismissal of the union members from the latter department. Edwin -Stri znick, Kenneth Smith, Donald Lind, and Harold L. Arthur, four of the union workers discharged from the shipping department, were named in the complaint. Warehouse No. 3.-Three of the six workers employed in Ware- house No. 3 were discharged between' December 22 and December 24, 1936. Two of the three, Truman B. Boren and George Stanich, were members of the Union. Of the three persons retained in the depart- ment, one was a member of the Union. It is clear from the record that in the four departments discussed above the respondent seized the opportunity offered by the arrival of its seasonal lay-off period to discharge the union members in its employ. The evidence reveals that while the respondent was receiving from labor spies, at least one of whom, high in union circles, was sta- tioned in one of these departments, daily reports concerning the union activities of its workers,' 27 of the 29 persons dismissed from such de- partments were members of the Union. On the other hand only 16 of the 40 employees retained were union members. The respondent did not in its Portland House follow a system of seniority in making its seasonal lay-offs. Neil McLeod, one of the DECISIONS AND dRDERS 549 union workers discharged from the receiving department, was senior in service to 19 of the 23 men retained in such department, while Reuben Litzenberger, another of the union members discharged from the receiving department, had seniority over 13 of those retained. In the freight elevator department, the six union members named in the complaint had seniority over two of the men retained, and in the shipping department, the four workers named in the complaint had seniority, over three of those kept on. . The swift growth of the Union in Warehouse No. 3 and in the freight elevator, receiving and shipping departments; the respond- 'ent's knowledge, through its labor spies, of this growth and of the union activities of its employees; the open campaign waged by the respondent to crush the Union; and the simultaneous dismissal of the great mass of union members from such departments lead in- evitably to the conclusion that at least in these four departments the seasonal lay-offs of December 1936 were used by the respondent as an excuse for ridding its House of union members and thus crushing the union drive among its employees. Furthermore, the respondent did not introduce any evidence' prov- ing that it had any reason, other than the policy of discharging union workers followed in the four departments described, above, to dis- miss the particular employees named in the complaint who had been discharged from such departments. We have no basis, therefore, upon which to find that any of such employees would have been dis- charged during the. seasonal lay-off period even if the respondent had not engaged in its anti-union tactics. We 'find that Dale Fields, Howard Schippers, James K. Navarra, Wayne W. Markkanen, Louis Straub, James Vanderhoof, Neil Mc- Leod, Reuben Litzenberger, John Schleining, Lloyd Haggblom, Riley Sanders, Melvin Anderson, Fred Gadotti, Ray_McLanghlin, Howard E. Pitzer, Floyd Anson, Edwin Struzniak, Kenneth Smith, Donald Lind, Harold L. Arthur, Truman B. Boren, and George Stanich were discharged because of their membership in and activities in behalf of the Union. Packing and Billing and Eighth Floor Departments.-Two of the union members named. in the complaint, Mary Lazuck and Minnie Landsberg, were discharged from the packing and billing depart- ment on December 22, 1936. Three others, William Shook, Malcolm MacGregor, and Inga Thompson, were .dismissed from the eighth floor at approximately. the same time. .The personnel survey sheets for these departments indicate that only seven of the 95 persons re- leased from the packing and billing department and only five of the 25 laid off on the eighth floor were members of the Union. No evidence was introduced concerning the union affiliation of the work- ers retained on the eighth floor, but 19 of the 55 retained in the 550 NATIONAL LABOR RELATIONS BOARD packing and billing department were union members. All 19 resigned from the Union immediately after the December lay-offs, however. The Board did not introduce any evidence at the hearing to ex- plain the difference between the percentage of union members dis- charged in these two departments and those discharged in the other four departments discussed above. We are therefore unable to deter- mine whether the small number of union members discharged was- due to the fact that the respondent had knowledge that the 19 union members retained in the packing 'and billing department intended resigning from the Union and that the union members discharged were the only other ones in the two departments, or whether it was because the respondent limited its policy of discharging union mem- bers to those departments which were strongly organized. Upon the record in the case, we cannot find that Mary Lazuck, Minnie Lands- berg, William Shook, Malcolm MacGregor, and Inga Thompson were discharged because of their membership in or activities in behalf of the Union. Arthur Morey.-Arthur Morey commenced working for the re- spondent on February 5, 1936, as a radio technician at 35 cents an hour. On May 2 he was raised to 421/2 cents an hour and on June 6 to 45 cents. On August 7 Morey was placed in charge of the radio, shop and raised to 50 cents an hour. He was given added duties and raised to 60 cents an hour on October 30. On November 6 he received another raise, this time to 70 cents an hour. Despite the very satis- factory work indicated by his rapid advance and numerous salary increases, Morey was discharged on December 23, 1936. Morey was one of the Union's most active members. As a member of -its negotiating committee he. had helped represent the Union at conferences concerning charges of intimidation and coercion held with Bullock and the respondent's attorneys about November 20 and 23, 1936, before the Regional Director for the Nineteenth Region. Following these two meetings, Iunker called upon Morey stating that he desired to hear the union's side. Iunker on that occasion told Morey that he knew of the latter's musical talents and choir activities and that he could not understand how Morey could have any interest in this type of union. Following this conversation Iunker took Morey to see Bullock, who devoted considerable time in explaining that the wage increases of November 6 were the result of the respondent's regular wage policy. There was no mention of the Union at this meeting. How- ever, Morey was again called in to see Bullock a few days later, at which time Bullock sharply criticized the Union and its officials. He informed Morey that the latter could obtain information at the sheriff's office and the police station "concerning members of the organization or those connected directly with the organization." DECISIONS AND ORDERS 551 Bullock added-that lie-did not--see what power the Union could have in an open shop where- non-union workers received the same wages as union workers. When Morey was discharged on December 23, Gardner, the shop foreman, informed him that lie was being replaced as head of the ,radio shop by Tom Ely, an older employee from the service auditing unit. When Morey protested to Bullock, the latter denied that he was being discharged for union activities and stated that the respond. ent was cutting down its force in Ely's section and it,was necessary to find room for Ely. Bullock promised Morey to reinstate him as soon as an opening occurred. The respondent, in its answer, denied that Morey had been dis- charged and stated that it intended to reinstate him as soon as work became available. The respondent's contention is not supported by the evidence, however. A vacancy which occurred in the shop shortly after Morey's dismissal was filled by Gus Hanson, an em- ployee of Sears Roebuck & Company, who had voluntarily left the respondent's employ several months before. Also, Morey's release card was checked "discharged" and not "laid off."' The respondent's .actions, therefore, belie its protestations concerning Morey, and it seems obvious that Ely was appointed to Morey's job merely tem- porarily until a new man, Hanson, could be found to fill the position. Upon all the evidence in the case, we find that Arthur Morey was discharged because of his membership in or activities in behalf of the Union. Other discharges.-Twenty-four other persons named in the com- plaint were discharged by the respondent from departments for which personnel survey sheets are not available. There is no evidence in the record, therefore, from which we can determine whether the respondent, in laying off employees from such departments, followed the policy adopted in Warehouse No. 3 and in the freight elevator, receiving, and shipping departments of retaining non-union workers and releasing members of the Union. The personnel records of these 24 workers were placed in evidence at the hearing. The records reveal their length of service and do give us some indication of whether their work had in the past been considered satisfactory by the respondent. We do not have any information concerning the total number of employees retained and released in each department, however. Furthermore, since the per- sonnel records of the other workers employed in the same depart- ments are not in evidence, we are unable to determine whether the basis used in selecting the individuals named in the complaint for dismissal was different from that used in considering the other em- ployees of such departments. 552 NATIONAL LABOR RELATIONS BOARD All 24 of the persons named in the complaint are members of the Union. The record, however, does not contain any evidence indi- cating the extent of their union activities. Only one of them; R. W. Strudgeon, testified at the hearing, and his testimony merely reveals that his work had never been criticized and that his supervisor, a man, named Snider, had stated to him at the time of his discharge, "I am sorry to have to do this, but this time comes around once a year." Upoil the record, we cannot find that R. W. Strudgeon, Leonard Signatt, Vincent Stachniewicz, Marion Lewis, Edward Pohl, Ray Haaga, Erven Kloostra, William R. Watson, Anthony C. Salta, Noble S. Powell, Glenn Bolick, Dick Nemyre, Terrence Harding, William Keller, Kenneth Martig, William Stubbs, Mrs. Paula Hill, Horton Bacon, Roy Henrickson, Ray Hoffman, James A. Henie, Ronald Barrie, C. W. Yost, and Adolph Peterson were discharged because of their membership in or activities in behalf of the Union. The respondent, by discharging Dale Fields, Howard Schippers, James K. Navarra, Wayne W. Markkanen, Louis Straub, James Van- derhoof, Neil McLeod, Reuben Litzenberger, John Schleining, Lloyd Haggblom, Riley Sanders, Melvin Anderson, Fred Gaclotti, Ray Mc- Laughlin, Howard E. Pitzer, Floyd Anson, Edwin Struznick, Ken- neth Smith, Donald Lind, Harold L. Arthur, Truman B. Boren, George Stanich, and Arthur Morey, because of their membership in and activities in behalf of the Union, has discriminated in regard to hire and tenure of employment and thereby discouraged membership in a labor organization. The respondent, by means of all of the activities described above, has interfered with, restrained, and coerced its employees in the exer- cise of the rights guaranteed in Section 7 of the Act. In the cases of Mary Lazuck, Minnie Landsberg, William Shook, Malcolm MacGregor, Inga Thompson, R. W. Strudgeon, Leonard Signett, Vincent Stachniewicz, Marion Lewis, Edward Pohl, Ray Haaga, Erven Kloostra, William R. Watson, Anthony C. Salta, Noble S. Powell, Glenn Bolich, Dick Nemyre, Terrence Harding, William Keller, Kenneth Martig, William Stubbs, Mrs. Paula Hill, Horton Bacon, Roy Henrickson, Ray Hoffman, James A. Henie, Ronald Barrie, C. W. Yost, and Adolph Peterson the respondent has not dis- criminated in regard to hire and tenure of employment and thereby discouraged membership in a labor organization. C. Other alleged unfair labor practices No evidence was introduced at the hearing to support the allegations of the complaint that the respondent had engaged in unfair labor practices, within the meaning of Section 8 (2) and (5) of the Act. DECISIONS AND ORDERS 553, We find that the respondent has not engaged in unfair labor prac- tices, within the meaning of Section 8 (2) and (5) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respond- ent described in Section I above, have a close, intimate, and substan- tial 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. THE REMEDY Since Dale Fields, Howard Schippers, James K. Navarra, Wayne W. Markkanen, Louis Straub, James Vanderhoof, Neil McLeod, Reu- ben Litzenberger, John Schleining, Lloyd Haggblom, Riley Sanders, Melvin Anderson, Fred Gadotti, Ray McLaughlin, Howard E. Pitzer, Floyd Anson, Edwin Struznick, Kenneth Smith, Donald Lind, Harold L. Arthur, Truman B. Boren, George Stanich, and Arthur Morey were- discharged as the result of unfair labor practices, we shall order their` reinstatement to their former or substantially equivalent positions. with back pay in the amount they have suffered by reason of their- respective discharges by payment to each of them of a sum equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his, net earnings 8 during said period. Such reinstatement shall be ef- fected in the following manner : All new employees hired after Decem- her 24, 1936, shall, if necessary to provide employment for those- ordered to be reinstated, be dismissed. If, thereupon, by reason of a reduction in force there is not sufficient employment immediately available for the remaining employees, including those ordered rein- stated, all available positions shall be distributed among such remain- ing employees in accordance with the respondent's usual method of reducing its force, without discrimination against any employee be- cause of his union affiliation or activities, following a system of senior- ity to such extent as has heretofore been applied in the conduct of the respondent's business. Those employees remaining after such distri- bution, for. whom no employment is immediately available, shall be placed upon a preferential list prepared in accordance with the prin- ciples set forth in the previous sentence, and shall thereafter in accord- 8 By "net earnings" is meant earnings less expenses such as for transportation, loom, and board , incurred by an employee in connection with seeking work or working elsewhere than for the respondent , which would not have been incurred but for his unlawful dis- charge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Jolnems of Amemica, Lumber and Sawmill Workers Union, Local 2590, 8 N L. R. B 440. =554 NATIONAL LABOR RELATIONS BOARD ante with such list be offered employment in their former or in substantially equivalent positions as such employment becomes avail- able and before new persons are hired for such work. New employees "or new persons" as used herein does not include employees who were -employed by the respondent up to December 24, 1936, and who were discharged together with those employees herein ordered reinstated. Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding, the Board makes the following : CONCLUSIONS OF LAW 1. Weighers, Warehousemen, & Cereal Workers' Local 38-123 of -the International Longshoremen's Association is a labor organiza- ition, within the meaning of Section 2 (5) of the Act. 2. The respondent, by discriminating in regard to the hire and -tenure of employment of Dale Fields, Howard Schippers, James K. Navarra, Wayne W. Markkanen, Louis Straub, James Vanderhoof, .Neil McLeod, Reuben Litzenberger, John Schleining, Lloyd Hagg- ,blom, Riley Sanders, Melvin Anderson, Fred Gadotti, Ray McLaugh- lin, Howard E. Pitzer, Floyd Anson, Edwin Struznick, Kenneth Smith, Donald Lind, Harold L. Arthur, Truman B. Boren, George :Stanich, and Arthur Morey, thereby discouraging membership in a labor organization, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. The respondent, by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 .of the Act, has engaged in and is engaging in unfair labor practices Within the meaning of Section 8 (1) 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. 5. The respondent, in the discharge of Mary Lazuck, Minnie Landsberg, William Shook, Malcolm MacGregor, Inga Thompson, R. W. Strudgeon, Leonard Signett, Vincent Stachniewicz, Marion Lewis, Edward Pohl; Ray Haaga, Erven Kloostra, William R. Wat- son, Anthony C. Salta, Noble S. Powell, Glenn Bolich, Dick Nemyre, Terrence Harding, William Keller, Kenneth Martig, William Stubbs, Mrs. Paula Hill, Horton Bacon, Roy Henrickson, Ray Hoffman, James A. Henie, Ronald Barrie, C. W. Yost, and Adolph Peterson has not engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act. 6. The respondent has not engaged in unfair labor practices, -within the meaning of Section 8 (2) and (5) of the Act. DECISIONS AND ORDERS ORDER 555 Upon the basis of the findings of fact and conclusions of law, and' pursuant to Section 10 (c) of the National Labor Relations Act,. the National Labor Relations Board hereby orders that the respond- ent, Montgomery Ward & Company, Incorporated, and its officers,. agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in Weighers, Warehousemen, &C Cereal Workers' Local 38-123 of the International Longshoremen's. Association or any other labor organization of its employees by dis- charging or refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of their employment because of their membership in or activity in behalf of any such labor- organization ; (b) Employing detectives to investigate the activities of its em- ployees in behalf of Weighers, Warehousemen, & Cereal Workers'" Local 38-123 of the International Longshoremen's Association or any other labor organization of its employees or employing any other- form or manner of espionage for such purposes; (c) In any other manner interfering with, restraining, or coercing- 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 concerted' activities for the purposes of collective bargaining or other mutual' aid or protection. 2. Take the following affirmative action, which the Board finds will, effectuate the policies of the Act : (a) Offer to Dale Fields, Howard Schippers, James K. Navarra,. Wayne W. Markkanen, Louis Straub, James Vanderhoof, Neil Mc- Leod, Reuben Litzenberger, John Schleining, Lloyd Haggblom, Riley Sanders, Melvin Anderson, Fred Gadotti, Ray McLaughlin, Howard E. Pitzer, Floyd Anson, Edwin Struznick, Kenneth Smith, Donald' Lind, Harold L. Arthur, Truman B. Boren, George Stanich, and' Arthur Morey immediate and full reinstatement to their former or- substantially equivalent positions, without prejudice to their senior- ity and other rights and privileges, in the manner set forth in the, section entitled "Remedy" above, placing those employees for whom' employment is not immediately available upon a preferential list in the manner set forth in said section ; (b) Make whole the employees named in paragraph 2 (a) above, for any loss of pay they have suffered by reason of their discharge, by payment to each of them, respectively, of a sum of money equal to that which he would normally have earned as wages during the .556 NATIONAL LABOR RELATIONS BOARD ,period from the date of his chschaige to the date of the offer of reinstatement, less his net earnings during said period; (c) Post immediately in conspicuous places on each floor of the Portland House and Store, notices stating that the frespondent will cease and desist in the manner aforesaid; (d) Maintain such notices ford a period of at least thirty (30): consecutive days from the date of posting; (e) Notify the Regional Director for the Nineteenth Region in writing within ten (10) days from the date of this Order what steps -the respondent has taken to comply herewith . And it is further ordered that the allegations of the complaint that the respondent has engaged in unfair labor practices within the meaning of Section 8 •(2) and (5) of the Act and with respect to, Mary Lazuck, Minnie Landsberg, William Shook, Malcolm Mac- Gregor, Inga Thompson, R. W. Strudgeon, Leonard Signett, Vincent Stachniewicz, Marion Lewis, Edward Pohl, Ray Haaga, Erven Kloostra, William R. Watson, Anthony C. Salta, Noble S. Powell, Glenn Bolich, Dick. Nemyre, Terrence Harding, William Keller, Kenneth Martig, William Stubbs, Mrs. Paula Hill, Horton Bacon, Roy Henrickson, Ray Hoffman, James A. I3enie, Ronald Barrie, C. W. Yost, and Adolph Peterson be, and they hereby are, dismissed.