Montgomery Ward & Co., Inc.

MONTGOMERY WARD & CO., INCORPORATED 645 Upon the basis of the foregoing findings of fact , and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. American Federation of Grain Millers, AFL, and the Committee are labor -organizations within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondents have engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. By recognizing and dealing with the Committee as the exclusive representative -of their employees while the petition filed by the Union was pending, and by grant- ing wage increases as a result of such negotiations , the Respondents have engaged in unfair labor practices within the meaning of Section 8 (a) (2) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Montgomery Ward & Co., Incorporated and Retail Clerks Inter- national Association, Local Union No. 1687, AFL-CIO. Cage No. 3-CA-825. February 29,1956 DECISION AND ORDER On April 18, 1955, Trial Examiner Arthur E. Reyman 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 it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Interme- diate Report attached hereto. The Trial Examiner did not find as unfair labor practices other conduct alleged in the complaint to be un- lawful. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report together with supporting briefs.' The Board 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 Interme- diate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,2 conclusions, and recommenda- tions of the Trial Examiner, with the following additions and modifications. 2 The Respondent also requested oral argument . In our opinion the record and the exceptions and briefs fully present the issues and the positions of the parties. Accord- ingly, the request is denied. 2 In the section of the Intermediate Report entitled "Union organization," the Trial Examiner inaccurately referred to the date that the Union filed a representation petition as February 16, 1954. Earlier in the Intermediate Report, under the section entitled "Preliminary findings," the Trial Examiner correctly stated that the Union filed its peti- tion on July 16, 1954. We correct the February date in the Intermediate Report to read July-16, 1P54. 115 NLRB No. 92. 646 - DECISIONS OF, NATIONAL LABOR RELATIONS BOARD - 1. The Trial Examiner found that Department Head Leonard DuFour was a supervisor as defined in the Act and that the Respond ent was responsible for his conduct. The Respondent argues that it is not responsible for DuFour's statements because the Board previ- ously had conclusively determined that he was an "employee" and therefore DuFour had the constitutional right to express himself con- cerning union activities.' As a department head, DuFour had a status different from that of other department heads. He directed the work of outside as well as inside salesmen. The evidence is clear that he had the authority either to hire or effectively to recommend the hiring of individuals working in his department and that the exercise of such authority was not mere- ly clerical or routine in nature.4 Accordingly, we find, as did the Trial Examiner, that DuFour was a supervisor within the meaning of Sec- tion 2 (11) of the Act. The Charging Union filed a representation petition with the Board on July 16, 1954, seeking an election in a unit of all selling and non- selling employees at the Respondent's Binghamton, New York, store, including department heads, but excluding supervisors. Subse- quently, the parties with the approval of the Regional Director agreed to the holding of a consent election in a unit of "all employees," ex- cluding supervisors.' The stipulated unit contained no reference to department heads in general or DuFour in particular. However, the employee list used for determining eligibility to vote in the election had DuFour's name on it and he was permitted to vote without challenge s The representation case was never before the Board itself. The matter was handled at the Regional Office level by agreement of the parties. The Board was never asked to determine whether DuFour was or was not a supervisor. Neither was the Regional Director re- quested to make such a determination. The Regional Director merely approved the arrangements for the election agreed to by the Union and the Respondent. Nor is there evidence that the Union was in 3 In its brief to the Board the Respondent states ' "Respondent would not presume to guess what the Board would decide about DuFour's status as an employee under the statu- tory definition, in the event that such status were an open question in this proceeding" 4Section 2 ( 11) of the Act says : "The term 'supervisor' means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, pro- mote, discharge , assign, reward , or discipline other employees, or iesponsibly to direct then, or to adjust their grievances, or effectively to recommend such action, if in connec- tion with the foregoing the exercise of such authority is not of it merely routine or clerical nature, but requires the use of independent judgment." SBoth the Union's petition and the parties' election agreement excluded certain of the store's top personnel in addition to the group exclusion of supervisors Q The customary practice is for a field agent of the Board to ask the employer for a pay- roll list of employees included in the unit . Union representatives then go over the list and raise objections , if any, to the inclusion or omission of names from the list The field agent may also raise objections to the hst if lie is in possession of information indicating thattian individual's name has been improperly omitted from or included on the list MONTGOMERY WARD & CO., INCORPORATED 647 possession of all the evidence as to the status of DuFour and deliber- ately refrained from making the claim that he was a supervisor.' We hold, therefore, that the mere fact that DuFour was permitted to vote in the election by agreement of the parties is not the equivalent of a determination of his status by the Board.8 Further, the fact that the Union may have agreed to the inclusion of DuFour in the unit cannot result in nullification of the statutory exclusion of supervisors from the definition of "employee" contained in the Act.9 Nor can it prevent the General Counsel from contending that DuFour was a supervisor. Assuming arguendo that, as urged by the Respondent, the Union is estopped from asserting that DuFour is a supervisor, that estoppel cannot operate against the General Counsel. The present case is a public proceeding by a public official against the Respondent, and not private litigation between the Union and the Respondent. Statements made by a supervisor violate Section 8 (a) (1) of the Act when they reasonably tend to restrain or coerce employees. When a supervisor is included in the unit by agreement of the Union and the Employer and is permitted to vote in the election, the employees ob- viously regard him as one of themselves. Statements made by such a supervisor are not considered by employees to be the representations of management, but of a fellow employee. Thus they do not tend to intimidate employees. For that reason, the Board has generally refused to hold an employer responsible for the antiunion conduct of a supervisor included in the unit, in the absence of evidence that the employer encouraged, authorized, or ratified the supervisor's activities or acted in such manner as to lead employees reasonably to believe that the supervisor was acting for and on behalf of management.10 How- ever, a supervisor, although mistakenly permitted to vote in the elec- tion by agreement of the parties, remains an arm of management. To the extent, therefore, that an employer's accountability for the conduct of a supervisor does not depend on employee reaction, the employer's responsibility for the supervisor's action is not affected by the fact of inclusion in the unit. Hence, an employer is chargeable with knowledge of union activities acquired by such a supervisor. And the supervisor's statements are admissible as evidence of his employer's motivation in discharging individuals. In neither of these situa- tions is employee reaction a condition to employer responsibility. 7It is clear that the Boat (I would not enteilain :i post-election challenge based on the contention that a snpervisoi was nuprt'peily pornntted to vote m the election Sears Roe- buckandCCo , 114NLRB 762 8Valentine Sugwe, Tic, and 1-alite Cot pmation , 102 NLRB 313 314, and cases cited therein 0 Crescent Ink and Color Company of Pennsylvania, 100 NLRB 663, 665 , American Opti- cal Company, 104 NLRB 263 , 269 The Steel Ptoducta Rnyrnecttng Comnpan-y, 106 NLRB 565, 576 70 Indianapolh T'en,epapea , Inc , 108 NLRB 1730, 1751 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Applying the above principles to the facts of this case, we find that, because of the lack of evidence that the Respondent actually or appar- ently authorized or ratified DuFour's course of conduct, the Respond- ent is not liable for such conduct. We shall therefore dismiss that portion of the complaint which alleged that the Respondent violated Section 8 (a) (1) of the Act in this respect.ii However, we also find that the Respondent is chargeable with the kiiowledge of union ac- tivities acquired by DuFour during the course of his interrogation of various employees, including Felker and Witter, and that his threats and statements to these and other employees may be considered in de- termining the reason why the Respondent discharged Felker and Witter. 2. The Trial Examiner found that the Respondent discriminatorily discharged employees Frank J. Felker and Irene Gladys Witter. The Respondent excepts to this finding. a. Frank J. Felker The Respondent asserts that a reorganization in the store job struc- ture brought about consolidation of two departments and that it dis- charged Felker, whose department was abolished, instead of others because he was the least satisfactory of the employees involved. Felker had worked for the Respondent for about 12 years. He was first employed from June 1942 to January 1953, working up the salary scale from $35 to $60 per week. Early in 1953, shortly after Felker had begun work for another firm at $65 per week, the Re- spondent offered him an increase to $70 to return to his former posi- tion.1a Felker accepted the offer and thereafter worked continuously for the Respondent until his discharge on August 23, 1954. The Trial Examiner found, and the record amply supports the finding, that Felker was an excellent salesman. Store Manager Rumble, Assistant Manager Brancato, former Assistant Manager Gutman, and Felker's fellow employee and successor, McGraw, all attested to his outstanding sales ability. The numerous awards won by Felker for high sales performance bear out the testimony of these witnesses. Despite Felker's long history of satisfactory performance, the Respondent discharged him without notice on the day he returned from a week's vacation. The events immediately preceding the discharge are illuminating of the Respondent's motivation. Between June and August 1954 the 11 The General Counsel filed exceptions to the Trial Examiner's failure to find additional 8 (a) (1) violations in DuFour's statements to employees Bright, Summers, and Shoudy. In view of our dispostion of the issues respecting DuFour's other allegedly coercive con- duct, we find it unnecessary to pass upon these alleged omissions by the Trial Examiner. 11 In addition to the flat salary, all of these jobs paid 4 percent commission on weekly sales in excess of $600. MONTGOMERY WARD & CO., INCORPORATED 649- Union engaged in an organizational drive among the employees. The drive culminated in a Board-conducted election on August 17, 1954. Felker joined the Union, attended meetings, solicited members, and was outspoken in his support of the Union.13 During this organizing period, Felker openly expressed his views about the Union to Super- visor Leonard DuFour. When DuFour questioned Felker as to what he thought of the Union, Felker replied that he thought the Union was a good thing because of the protection it would afford the people in the store. On another occasion DuFour informed Felker "that the Company knows all of those that are in favor of the Union and they will lose their jobs." Shortly thereafter DuFour told Felker that, should the Union be successful, they would all lose their jobs because the Company would close the store. - DuFour also threatened employees Witter and Bright. He asked Witter if she had signed a union card and told her that she would lose her job because of her union activity. DuFour further insinuated to Bright that, if the Union did win, certain individuals in the store would be automatically squeezed out. About the same time Store Manager Rumble was questioning employees about the Union, ask- ing them whether they had been to any union meetings and whether they had joined the Union. Then, without notice on August 23, 1954,, the Respondent discharged Felker. The Respondent's store manager, Rumble, testified that he decided to discharge Felker because he had no basic payroll to support him after Felker's job was eliminated by a reorganization in the store. But the Respondent's then regional operating manager, Elliott, testified that the store manager could shift an employee, whose position is elimi- nated, to another position. And another position was available. Within a month of Felker's discharge, the Respondent hired McHugh as a,full-time employee at $50 a week (plus commission) to replace Felker.14 Whether additional payroll allowance was available due to resignations, as Rumble testified, or whether the Respondent had set a salary for Felker's replacement immediately after the latter's dis- charge, as McGraw testified'15 the fact is that the Respondent did not offer a job to Felker when it could. It chose to hire a new inexperi- enced employee rather than Felker who had been one of its best sales- 131n fact Felker retained to the stoie to vote in the election conducted during the period he was on v.ication '-Store Manager Rumble's testunoiiv places ]N1cITugh's fining as within 10 days of Felkel's discharge Employee McGraw's testimony places the date as the last week in September "According to McGiaw. rely shoitly attei Felkers dischaige, Rumble asked him, whether lie prefer red a woman assistant at $35 a week or a man at $50. This testimony tends to show that management knew the salad available for Felkei's replacement unme- diately atter Felker's discharge. 1650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD men. It had offered Felker only a $20 a week part-time job after it discharged him, a job Felker declined.1e The Respondent enumerated a variety of complaints against Felker. These allegedly overrode Felker's excellence as a salesman - and caused the Respondent to select Felker over McGraw in eliminating positions and subsequently to hire a new employee at a salary that would sub- stantially wipe out the savings presumably effected by Felker's dis- ,charge. These complaints were that Felker was a poor merchandiser, maintained his department poorly, and was unavailable to work overtime. The complaint as to poor merchandising included failure to liqui- date old stock. The Respondent points out that this criticism was made by former Store Manager Orman, by Rumble, and by Brancato in 1953 and thereafter. But the Respondent did not discharge Felker during the period of Orman's management. Rather, after Felker voluntarily left the Respondent's store in 1953 for a job elsewhere, the Respondent asked him to return at a higher salary. Moreover, As- sistant Manager Brancato testified that Felker did reduce his 6- month old inventory by 75 percent and inventory of more than a year by 50 percent." And, as Felker explained in testimony credited by the Trial Examiner, stockroom personnel were responsible for sending him new merchandise rather than the old inventory, resulting in ac- cumulation of the older stock. The Trial Examiner thus concluded that Felker handled the inventory as well as might reasonably have been expected. The exact criticism directed to other of Felker's qualities as a "mer- chandiser" is not entirely clear. The former assistant manager, Gut- man, testified that Felker would order more than he needed. Store Manager Rumble testified that Felker did not order merchandise as quickly as he should have and therefore his stock was not ample. But Rumble also said that Felker overbought items. Brancato, Rumble's assistant, said that Felker would either overbuy or under- buy. And District Manager Levengood testified that Felker was "not the best buyer." Felker, whom the Trial Examiner credited, testified that Gutman did not critize his work. Moreover, Gutman, assistant manager when - 19 Felker testified that after Assistant 'Manager Brancato released him by payment of wages and after Felker had signed his timecard and receipt book , Brancato then offered Felker the pact-time job When Felker declined, saying to Brancato, "You know I can't accept that," Brancato answered, "No, I didn't think you could " 11 The store merchandise was known as B (more than 6 months old) and X (more than 1 year old) inventory Brancato testified that the Respondent's standard required a 100- percent reduction In old inventory. When asked whether any department in the store reduced its inventory as much as Felkei's department, Brancato replied that he was not qualified to answer the question without records When asked further whether any de- partment had no B and X inventory at all on hand, he replied in the affirmative but said that he could not name them without records This testimony is too vague to be given probative value. MONTGOMERY WARD & CO., INCORPORATED 651 Felker accepted the Respondent's offer to return to the store in March 1953, although aware of Felker's alleged shortcomings, interposed no objection to Felker's return and said that it was his considered judg- ment that the store manager should ask Felker to return. Rumble's and Brancato's testimony that Felker both underbought and overbought cannot be entirely reconciled. The record shows that the practice was for an employee to requisition merchandise only through a check list. The assistant manager or manager reviewed the list against a certain established sales allotment. If the employee ordering the goods exceeded that allotment, the reviewing official would not approve the order and the merchandise could not be bought. Thus overbuying was controlled at a level higher than Felker's. Rum- ble and Brancato gave no examples of Felker's underbuying, and Lev- engood did not elaborate on Felker's alleged deficiencies in buying merchandise."' The criticism by the Respondent's officials of Felker's counter main- tenance, saying that he was poor at changing counter displays and that counters were not clean and neat, seems hardly a factor that would outweigh Felker's usefulness as a top salesman. And we, like the Trial Examiner, find no reason to discredit employee McGraw who testified that Felker's department, like others in the basement, was difficult to keep clean and orderly and that Felker's department was not less clean than other basement departments.'° Finally, the Trial Examiner found that the Respondent had no cause to complain about Felker being unavailable for overtime work. The Respondent's store managers testified that Felker was unavailable because of his obligations to automobile riders whom he drove to and from work. Felker, however, testified that his regular 44-hour week required working 1 night a week until 7 o'clock, a requirement that he fulfilled, and that he never refused to work overtime 20 Fur- ther, according to former Assistant Manager Gutman, the Respondent permitted Felker at times to begin work earlier than usual in the morn- ing rather than to work late at night. In view of these facts, we con- clude, as did the Trial Examiner, that any alleged unavailability for 11 Levengood 's criticism of Felker 's buying ability was too general to carry much weight. We note too that Levengood criticized Felker's sales ability-a criticism completely at odds with that of Felker 's superiors and fellow employees . We therefore question the soundness of Levengood 's criticism "The Trial Examiner credited Felker's testimony in finding that Store Manager Rumble seldom appeared in Felker's basement department . He erroneously included Brancato in this finding. We do not -rely on the erroneous inclusion . Felker 's testimony referred only to Rumble's infrequent visits 90 Felker mentioned that in late June 1954 he had a dispute with Assistant Manager Brancato about whether the Company should buy his evening meal because he lived too far from the stoic to go home for his dinner and return. Felker's testimony refers to the Company's payment for an employee 's evening meal in such circumstances as a condition specified in "our basic book of employment." Thereafter, Felker said, the employees voted to work additional time immediately after the store closed at 5 p. in 652 DECISIONS OF NATIONAL LABOR RELATION BOARD overtime work played no part in the Respondent's decision to discharge Felker. Store Manager Rumble testified that the Respondent ran an adver- tisement in the local newspaper periodically and particularly to build an employee reserve for "Ward Week" beginning about October 15, Thanksgiving, and the Christmas season. The Respondent advertised for employees on August 27, 4 days after it discharged Felker. The advertisement did not state that the jobs offered were only temporary or seasonal. The Trial Examiner did not credit Rumble's explanation for the advertisement. We see no reason to disturb his resolution on credibility. Like the Trial Examiner, we believe that a preponderance of the evidence demonstrates the discriminatory nature of Felker's discharge. b. Irene Gladys Witter The facts surrounding the Respondent's discharge of employee Witter fall into a similar pattern. Witter had worked for the Respondent at various times since 1942. She had worked continuously and on a full-time basis for 4 years be- fore her discharge. The employees who had worked with Witter- Brewer, McTigue, and Marold, as well as the previous store manager, -Orman-al thought she did a satisfactory job .21 Like Felker, Witter was discharged without notice. This dis- charge on August 19, 1954, 2 days after the union election, was coin- cident with Witter's announced union preference. Early in August, while the Uri Lon was conducting its organizing campaign, Supervisor DuFour asked Witter whether she had signed a union card. Witter replied that she had, telling DuFour that she had "waited a long time to see this happen." 22 Like the similar remarks that he made to Felker, DuFour told Witter that she would lose her job "fooling around with the Union." He repeatedly advised her not to "get mixed up" with the Union as she would lose her job. These remarks were but a repetition of DuFour's similar threats to Felker and his veiled prediction to employee Bright that if the Union were successful, "cer- tain individuals in the store Would be automatically squeezed out." Witter encountered DuFour again on the afternoon she was dis- charged. When he commented on her wearing a union button, Witter said, "Yes, I am proud of that button. I waited a long time to wear one." Again he advised her that he would not have anything to do 21 Employees l:rewei, ,McTigue, and DM.irold testified at the hearing, Ornian's views are in a letter, dated July 24, 1954, addressed to the State Civil Service Commission, stating that lie found Witter "honest and industrious and interested in her work" and that he "considered her a satisfactory employee" whom he was "pleased to recommend 22 Store Manager Rumble had observed Witter talking to the Union's organizer on a, day,pieceding the union election of August 17, 1954, MONTGOMERY WARD & CO., INCORPORATED 653 with the Union or anybody in it if he were in her position. That same day the Respondent discharged Witter. The Trial Examiner rejected the Respondent's explanation that a reduction in its "extras" force was necessary and that it chose Witter because she was the least satisfactory employee in the group selected for reduction. We believe that he correctly evaluated the evidence bearing on this explanation. It appears that the allowable funds for the "extras" payroll for the period ending the day before Witter"s discharge was $46 more than the normal payroll allotment. Witter's salary was but $35 weekly and-was easily within that payroll allowance. The record also shows that, in the weeks following Witter's discharge and continuing until the end of the year, the Respondent's payroll showed an excess pay- roll allowance in every week except two (falling in December). In selecting Witter the Respondent discharged a full-time, experienced employee rather than a casual one. We regard as questionable the Respondent's explanation that it did not offer Witter, an experienced employee, available part-time work because it felt that she could not afford to accept it. Further, the Respondent's assertion as to the necessity for eliminat- ing jobs cannot be supported when, less than 10 days after Witter's discharge, the Respondent advertised in the local newspaper for addi- tional employees; it hired a new employee to replace Witter 2 weeks after it discharged her, and it made no effort at all to recall Witter. The Respondent introduced voluminous exhibits which it offered as proof of Witter's incompetence. The exhibits are largely sales slips on which, the Respondent contends, Witter omitted vital informa- tion describing merchandise or identifying the customer. In agree- ment with the Trial Examiner's conclusions, we find reasonable Wit- ter's explanation of the claimed inaccuracies.23 In sum, the record does not support the Respondent's contention that it discharged employees Felker and Witter for reasons of eco- nomic necessity. We have carefully considered all the evidence, and, we conclude, as did the Trial Examiner, that the Respondent dis- charged these two employees to rid itself of active union proponents. We are compelled to this. conclusion after close examination of the record and particularly because the reasons offered by the Respondent in justification of the discharges do not stand up under scrutiny.2' "For example, Witter explained that in instances where the sales slip failed to describe the "color" of a spike tooth harrow, there was only one color and the stock clerk filling the order would not be misled by the sales slip Similarly, in an instance of not describ- ing the color of a double picket fence, Witter said that this item was made of copper, and was not ordinarily described by its color. And a wood picket fence, not described by color, Witter said was always white and that stock clerks were aware of this uN. L R. B. v. Dant & Russell, Ltd, 207 F. 2d 165 (C. A. 9), reversed on unrelated jurisdictional 'grounds 344 U S. 375; N. L R B. v Bird Machine Co , 161 F 2d 589, 892 (C. A 1), and cases there cited. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, we find that the Respondent violated Section-8 (a) (3) and (1) of the Act in discharging Frank J. Felker and Irene Gladys Witter. 3. The Trial Examiner found that the Respondent also interfered with, restrained, and coerced its employees in violation of Section 8 (a) (1) by Store Manager Rumble's questioning of employees Shoudy, Dino, and Marold as to union activity and Assistant Man- ager Brancato's remarks to employee Witter. The Respondent con- tends that Rumble and Brancato were only joking. We adopt the Trial Examiner's finding that Rumble's questioning of employees as to whether they had been to any union meetings and whether they had joined, when considered together with the discrim- inatory discharges of Felker and Witter, violated Section 8 (a) (1). However, we find merit in the Respondent's contention that Assist- ant Manager Brancato's remark to Witter about voting in the elec- tion was made jokingly and did not tend to restrain Witter in her right to vote in the election . We shall therefore dismiss the com- plaint insofar as it alleges an 8 (a ) ( 1) violation by Brancato's state- ments to Witter. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respondent, Montgomery Ward & Co., Incorporated, Binghamton, New York, its officers, agents, successors, and assigns , shall : 1. Cease and desist from : (a) Discouraging membership in Retail Clerks International Association, Local Union No. 1687, AFL-CIO, or in any other labor organization of its employees, by discharging or refusing to rein- state any of its employees, or by discriminating in any other manner in regard to their hire or tenure of employment, or any term or con- dition of their employment. (b)- Interrogating its employees concerning their union member- ship, union activities, or views about Retail Clerks International Association, Local Union No. 1687, AFL-CIO, or any other labor organization, in a manner constituting interference , restraint, or coer- cion in violation of Section 8 (a) (1). (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 Retail Clerks International Association, Local Union No. 1687, AFL-CIO, or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to en= gage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection , and to refrain from any MONTGOMERY WARD & CO., INCORPORATED 655 or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment, as authorized 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 Frank J. Felker and Irene Gladys Witter immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to seniority or other rights and priv- ileges previously enjoyed, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them, in the manner provided in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and make available to the Board or its agents, upon request, for examination and copying, all payroll records, social- security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due and the rights of employment under the terms of this Order. (c) Post at its store in Binghamton, New York, copies of the notice attached hereto marked "Appendix A." 25 Copies of said notice, to, be furnished by the Regional Director for the Third Region, shall, after being duly signed by the Respondent, be posted by it 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. (d) 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 be, and it hereby is, dis- missed insofar as it alleges that the Respondent violated Section 8 (a) (1) of the Act by the conduct of Leonard DuFour and John Carl. Brancato. MEMBER PETERSON, dissenting in part : I join with my colleagues in that part of their decision sustaining. the complaint allegations that the Respondent discharged employees Felker and Witter in violation of Section 8 (a) (3) and (1), and co- erced its employees in violation of Section 8 (a) (1) by the conduct of Store Manager Rumble. I also join with them in dismissing the coin- plaint allegation as to Assistant Store Manager Brancato's conduct. 21 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words. "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Ordei 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Contrary to the majority decision, I would sustain the allegation that the Respondent interfered with, coerced, and restrained its em- ployees in the exercise of their right to self-organization by Super- visor DuFour's conduct in interrogating employees as to union activ- ities and in threatening employees with loss of their jobs if the Union were successful. The Respondent does not dispute DuFour's threats to employees Bright, Felker, and Witter. As the Trial Examiner found, DuFolir questioned Bright before the election as to whether he had been approached by any of the union members, and when Bright replied that he had not, DuFour told him not to let the Union influence his thinking, that the Union did not have a chance of winning the elec- tion. DuFour added to Bright that if the Union did win certain individuals in the store would be automatically squeezed out. These predictions of job loss to Bright were made in more direct fashion to employees Felker and Witter, the same employees who later lost their jobs on account of their union activity. DuFour told Felker outright, after Felker expressed prounion sentiments, that "the Com- pany knows all of those that are in favor of the Union and they will lose their jobs." On another day shortly before the election, DuFour warned Felker that "if the Union comes in, we'll all lose our jobs because Montgomery Ward will close the store." Similarly, in early August, DuFour questioned Witter about whether she had joined the Union and, upon her affirmative answer, told her that she "would lose [her] job fooling around with the Union." Still later he told her that he "wish[ed] she would not get mixed up with this union business" because she was "liable to lose [her] job." On another occasion DuFour reiterated his threat to Witter not to get "mixed up" with the Union saying that she would only lose her job .21 There can be no question that, in the usual case, the Board would hold such threats by a supervisor to be unlawful. And, when con- sidered in context with the discriminatory discharges of two of the people to whom they were addressed, their coercive character is un- mistakable. Indeed that part of the majority decision in which I concur finds the Respondent's discriminatory motivation, in discharg- ing Felker and Witter, revealed by DuFour's threats. It seems to 20 DuFour testified, as the Trial Examiner found, that he was opposed to the Union and that he had not hesitated to express his opposition , saying that he was, entitled to voice his antiunion opinions . At least one of the Respondent 's store officials , Assistant Manager Brancato, was aware that DuFour was doing just that. Brancato acknowledged that em- ployee Hurst asked him why DuFour could talk about the Union the way he did. Bran- cato testified that he told Hurst that what DuFour said was his own business There is no evidence that Brancato or any other responsible official made any effort to put a stop to DuFour's conduct or to disassociate the Respondent from it. Store Manager Rumble also may have known of DuFeur's activitg for, according to DuFour, Rumble told him not to discuss the Union around the offices but to "please step outside into the public part of the store before I carried on any discussions as far as union activities went." MONTGOMERY WARD & CO., INCORPORATED 657 me that there is an apparent inconsistency in the majority's refusal to find as unlawful DuFour's threats while at the same time tracing the Employer's responsibility for the discriminatory discharges through this very conduct on the ground that the supervisor "remains an arm of management." - I would hold the Respondent answerable for DuFour's coercive conduct. If DuFour is a part of management, any question of author- ization or ratification of his actions is beside the point. If he is a part of management in any sense, employees are no less coerced if he voted in the election than if he did not vote. This is particularly true where, as here, DuFour could not properly have been in the bargaining unit. The language of the parties' consent agreement specifically excluded supervisors. This excluded him. But in any event the words of the statute must be given overriding consideration. They expressly ex- clude supervisors from the definition of "employee[s]" entitled to an election 21 The majority relies on this statutory policy in holding that the inclusion of DuFour in the unit at the time of the election cannot operate to prevent a determination at this time by the Board that DuFour was a supervisor. Once that determination is made there is no reason to relieve the Respondent of the consequences flow- ing, from it. It strains the meaning of words to hold, as does the majority, that DuFour's threats of discharge and of job loss by closing the plant "do not tend to intimidate employees." The majority reasons that there was no intimidation because DuFour was included in the unit and permitted to vote. Whether words intimidate or tend to do so should not depend on the accidental classification of names on the voting eligibility list. No error of placement by the Employer in drawing up the list or failure by the Union to challenge a voter can detract from DuFour's coercive conduct in his position as a super- visor. I would hold the Respondent accountable for that conduct and specifically enjoin for the future the commission of it. MEMBERS RODGERS and BEAN took no part in the consideration of the above Decision and Order. aT Sections 2 (3) and 9 (c) (1) of the Act APPENDIX A NOTICE TO ALL EMPLOYEES 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, we hereby notify our employees that : IVE WILL NOT discourage membership in Retail Clerks Interna- tional Association, Local Union No. 1687, AFL-CIO, or in any 390609-56-vol. 115--13 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 or tenure of employ- ment, or any term or condition of employment. WE WILL NOT interrogate our employees concerning their union membership, union activities, or views about Retail Clerks In- ternational Association, Local. Union No. 1687, AFL-CIO, or any other labor organization, in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) WE WILL offer to Frank J. Felker and Irene Gladys Witter im- mediate and full reinstatement to their former or substantially equivalent positions, without prejudice to seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination against them. WE, WILL NOT'in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organiza- tiqul to form, join, or assist Retail Clerks International Asso- ;ciation, Local -Union No. 1687, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and 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 Section 8 (a) (3) of the Act. MONTGOMERY WARD & CO., INCORPORATED, Employer. Dated---------------- By------------------------------- ------ (Representative ) ( Title) This notice must remain posted for 60 &ys from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE After the filing of a charge, an additional charge, and a first amended charge by Retail Clerks International Association , Local Union No. 1687 , AFL, the General Counsel of the National Labor Relations Board, through the Regional Director of the Board for the Third Region (Buffalo, New York), on November 26, 1954, issued a complaint against Montgomery Ward & Co., Incorporated , alleging that the Respondent had violated and is violating the provisions of Section 8 (a) (1) and ( 3) of the National Labor Relations Act , as amended (61 Stat. 136; 29 U. S. C. Supp. I, Section 141, et seq. ). The alleged violations are discussed below.' 'Retail Clerks International Association . Local Tlnion No. 1687 , AFL, is sometimes referred to herein as the Union ; the General Counsel of the National Labor Relations Board or his counsel as the General Counsel, as apparent in contest ; the Regional Director for the Third Region as the Regional Director ; and 3loutgomery Ward & Co., Incorporated, as the Respondent or the Company . The National Labor Relations Act, as amended, will be referred to as the Act. MONTGOMERY WARD & CO., INCORPORATED 659 Upon request of the Respondent, the General Counsel filed a statement of par- ticulars; the Respondent thereafter filed timely answer to the complaint. Upon due notice, the matter came on for hearing before the duly designated Trial Examiner on January 11, 1955. On that day certain amendments to the complaint, to the statement of particulars, and to the answer were made and allowed without objec- tion from any party. On the issues framed by the complaint as amended and the answer as amended, the hearing went forward, and was closed on January 14, 1955. At the hearing the General Counsel, the Respondent, and the Union as Charging Party, were represented by counsel. Full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing upon the issues, to make oral argument, and to file briefs and proposed findings of fact and conclusions of law was afforded all parties.2 Upon the entire record in the case, from his observation of the witnesses, and after careful consideration, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The Respondent, Montgomery Ward & Co., Incorporated, is and has been at all times material hereto a corporation duly oiganized and existing by virtue of the laws of the State of Illinois, maintaining its principal office and place of business at Chicago, Illinois, and has maintained and operated retail and mail-order stores in the State of New York (including its retail and mail-order store located in Bingham- ton, New York) and in various other States in the United States, where it is now and continuously has been engaged in the sale and distribution of merchandise. In the course and conduct of its business operations during the year 1953, the Respond- ent sold, through all of its various retail and mail-order stores located in the State of New York and other States in the United States, merchandise valued in excess of $100,000,000, and sold, through its retail and mail-order store located in Bingham- ton, New York, merchandise valued in excess of $1,000,000 of which approximately $32,000 was sold and shipped to customers located outside of the State of New York. During the same period, the Respondent purchased, for its retail and mail- order store located in Binghamton, New York, merchandise valued in excess of $1,000,000 of which approximately 35 percent was purchased outside of the State of New York and shipped directly to its said retail and mail-order store located in Binghamton, New York. The business operations of the Respondent were not sub- stantially reduced, if at all, in the time between the filing of the complaint and the hearing herein. The Respondent is engaged in commerce, within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Retail Clerks International Association, Local Union No. 1687, AFL, is a labor organization within the meaning of Section 2 (5) of the Act, admitting to member- ship employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Preliminary findings The issues drawn herein, by the pleadings, by motion, and by proffered and ac- cepted testimony, require that it be decided whether: (1) the Respondent, by certain of its responsible representatives or agents, interrogated, warned, threatened, or otherwise interfered with the rights of its employees in copnection with union 2 Before any witness was called, counsel for the Respondent objected to the hearing go- ing foiward and moved for a stay of pioceeding "on the giound-that in the absence of it Geneial Counsel of the Board there is no authority to pioceed inasmuch as under Section 3 (d) of the National Labor Relations Act, final discretion as to the investigation of charges, issuance of complaints and prosecution of complaints is vested in the General Counsel, and that the office is now vacant " The Tiial Examiner could perceive no prejudice which could attach to the Respondent should the hearing proceed, and accordingly denied the motion for a stay The charge herein was filed September 10, 1954, the additional charge on October 4, 1951, and the first amended cliaige Ras filed on November 26, 1954 The complaint was issued on November 26, 1954 The teim of fir Geoige Bott as General Counsel expired at the close of business on December 20, 1954 , he pieviously had desig- nated his counsel tor the purposes of this case In this connection, see Baivu it Teller, Inc., 96 NLRB 608, 197 F 2d 610 (C A 2), cert. denied 345 U. S 905 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organization and activity; (2) Irene Gladys Witter and Frank J. Felker, or either of them, were discharged from the employ of the Respondent at its Binghamton, New York, store, on or about August 19, 1954, and August 23, 1954, respectively, because each of them joined or was active in behalf of or assisted the Union or engaged in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and for any such reason has been denied reinstate- ment to her or his former or substantially equivalent position or employment; (3) the Respondent decreased the rates of pay of Witter and Felker because of the union activity of each of them; and (4) that by engaging in such practices the Respondent discriminated and is discriminating in regard to hire and tenure as conditions of employment of these and the other of its employees at its Binghamton store in con- travention of the rights guaranteed to all of its employees under Section 7 of the Act. The Respondent has entered a general denial to each of these alleged viola- tions of the Act and also sets up certain affirmative defenses, in which it says, in substance, that an election among its employees at its Binghamton store, upon the petition of the Union to be certified as the collective representative of these employees, within an agreed-upon bargaining unit, and the result of that election, ahd the subsequent certification of the Union as bargaining representative, (1) now estops the Union from claiming that certain employees within the bargaining unit are supervisors within the meaning of the Act, (2) that the status of the alleged supervisors as employees under the Act has been adjudicated by the Board, and (3) that at least until the time of the filing of the complaint herein, the Respondent relied upon the "certification of the bargaining unit" which included persons now claimed to be supervisors, as showing those persons to be "employees" within the meaning of the Act, and therefore the Respondent was compelled to refrain from interfering with the right of these persons or any employees to the exercise of free speech in regard to union matters and activities so as to avoid unfair labor practices. Prior to the filing of complaint herein, the Union on July 16, 1954, filed a petition for certification as representative with the Regional Director, and on August 9, 1954, ,the:Regional Director approved a stipulation for certification upon consent election entered into between the Union and the Company. The stipulation described the appropriate bargaining unit as: All employees of Montgomery Ward, Binghamton, New York retail store, excluding the manager, assistant manager, guards, professional employees, and supervisors as defined in the Act. On August 17, 1954, an election was conducted and as a result the Union was cer- tified as the collective-bargaining representative for the employees in the unit defined in the stipulation for certification upon consent election. Montgomery Ward & Co., Incorporated, and Retail Clerks International Association, AFL, Local 1687, Case No. 3-RC-1439 (not reported in printed volumes of Board Decisions and Orders). At the time of the election, there were approximately 81 employees found eligible ,to vote, including employees called department heads. At the hearing herein, it was stipulated between counsel for the parties that the store manager and the assistant store manager are supervisors within the meaning of the Act. B. Management of the Binghamton store The Binghamton store is divided into departments, each department having one or more divisions, with the employees in each department subjected to the immediate supervision of a department head. Each division is given a designated number; for example, the appliance department is made up of division 62 (radios), division 63 (television), division 68 (stoves), division 69 (refrigerators), and division 85 (washing machines). At the time of the election on August 17, 1954, there were 28 departments in the store, each having a department head. • Theo' Birighainton store; within ^ the organizational -structure of the Company, is I of some 18 stores, more or less, in district 2 of region 1. Region 1, with head- quarters in New York City, has territorial jurisdiction over what roughly may be called the eastern part of the United States and is divided into six districts. This region has a regional manager, who heads a staff consisting of himself, a personnel manager, a merchandise manager, an operating manager, and, at the field level, six district managers and a store manager for each store under the district manager for the particular district in which the store is located. The operating manager, working with the district manager, is chiefly responsible for the control of profit on a regional basis. The district manager, on the basis of a basic organization structure for each store in his district established by the regional office (regional operating manager under the general supervision of the regional manager after conference with the district manager), is responsible for each such MONTGOMERY WARD & CO., INCORPORATED 661 store and for obtaining maximum sales and profit in his district. Through a system of detailed reports furnished by the store manager, a close check is maintained on the operations of each store, and a review of these reports against-the basic organiza- tion chart for that store provides the district manager and his superiors with informa- tion as to whether the store is meeting the sales quotas, overall and for each of its several departments, and whether the store is within its budget for payroll and other expenses. The store manager has only a slight degree of leeway in what is permitted by the basic organization structure; he has an allowance of a certain percentage of the sales over those shown as "basic" which he may use to pay extra or temporary help as long as "basic" is met and such an "allowance" is earned.3 The basic store chart sets up the number of regular, reserve, or extra employees the store manager may employ (other than on "allowance"); otherwise, in the case of hiring new employees or in the granting of increases, the store manager recommends to the district man- ager. In short, the basic organization schedule, established in the regional office, sets up the organization of the store and guides the store manager in the performance of his duties. The testimony herein shows that in district 2, where the Binghamton store is located, the "basic" is revised twice a year; that operations for the preceding 6 months are reviewed by the regional office in June and November; that a new "basic" was issued about December 26, 1953, to become effective in January 1954; and that a new or revised "basic" was issued sometime after June to become effective dur- ing July 1954. During the course of such a review, and before the issuance of a revised "basic," the regional office staff members, having examined the perform- ance of the store and its departments, and having before them the results of the comparisons of sales, payroll, profits, and other material items, consider the physical aspects of the store, sales trends, and prospective profits or loss, make final decision, and issue a new "basic" td be put into effect by the store manager .4 Thereafter, and until the next "basic" is established, changes in current basic can be established only upon a "basic change notice" submitted by the store manager to the district manager for approval. If the basic change notice is approved by the district man- ager, he in turn submits it with his recommendation to the regional office. The Respondent, in regard to the discharges of Witter and Felker, in effect set up the revision of the basic organization structure in July 1954 as the primary cause for the discharges. C. Department heads as "supervisors" C. A. Rumble has been manager of the Binghamton store since March 15, 1953; John Carl Brancato has been assistant store manager since September 8, 1953. The allegations of the complaint concerning the charge that the Respondent in- terfered with, restrained, and coerced employees in violation of Section 8 (a) (1) of the Act are based upon certain alleged activities of Rumble, the store manager, Brancato, the assistant store manager, and Leonard DuFour, head of the appliance department. Rumble and Brancato concededly are supervisors within the mean- ing of the Act; neither one of them voted in the election on August 17, 1954. The General Counsel contends that DuFour is a supervisor within the meaning of the Act, notwithstanding the fact that he, as well as other department heads, voted in the election. The Respondent takes the position that because DuFour voted in the election, the General Counsel is now estopped from contending that he is a supervisor; and that the Board has adjudicated the question in Case No. 3-RC-1439. In Case No. 3-RC-1439, the petition for certification requested that department heads be included in the bargaining unit; the stipulation for consent election sub- sequently entered into between the Union and the Company provided that super- visors be excluded from the unit. Apparently no question was raised concerning the status of any department head as a supervisory employee before or at the time of the election on August 17. No evidence of the eligibility of DuFour or any other department head to vote can be found, nor is there evidence that their votes were challenged. It was only after the election, and after the termination of em- ployment of -Witter and Felker, and upon the filing of a charge of unfair labor 8 To find the "allowance" which may be used each week by the store manager, a former operations manager testified, the net sales of the store for the week "over the basic" pro- duces a figure : ". . the figure is an applied formula percentage that is applied to the excess sales over the basic sales in the non-commission department " * On the "basic," each employee. by person and by salary, is given a certain basic sales figure The basic sales figuie also depends upon the number of persons in the department. The basic sales figure so established is the figure which management believes should be met in order for a particular group to pay for themselves in terms of cost and profit. 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practices against the Respondent, that the question was raised as to whether DuFour, in particular, was during these times an "employee" or a "supervisor." The Re- spondent, in support of its position that the General Counsel and the Union are now estopped from charging that DuFour is and was a supervisor so as to make his employer responsible for his acts and words against the unionization of the em- ployees, has cited N. L. R. B. v. Carlton Wood Products, 201 F. 2d 863, 866 (C. A. 9); and N. L. R. B. v. Scullin Steel Co., 161 F. 2d 143, 149 (C. A. 8). The-Carlton case involved primarily a refusal to bargain in good faith in contravention of Sec-_ Lion 8 (a) (5) of the Act. The Scullin Steel case came before the Board after the Board on hearing had decided that four minor supervisory employees were "em- ployees." 5 The Respondent, relying upon N. L. R. B. v. Russell Mfg. Co., 191 F. 2d 358 (C. A. 5), modifying on rehearing 187 F. 2d 296; and Goodyear Clearwater Mill, 102 NLRB 1329, asserts that by definition an "employee" is a nonsupervisor, and in order for an employer to be guilty of an unfair labor practice growing out of the actions of the nonsupervisor it must be shown that he was acting as an agent of the employer. But this is not precisely so. (Cf. International Assn. of Machinists v. N. L. R. B., 311 U. S. 72, 80.) These cases are not in support of the point made by the Respondent. The Trial Examiner is of the opinion that for the purposes of the instant case, it becomes necessary to decide the supervisory or the nonsuper- visory status of DuFour. The Respondent in its brief says that it "... is confident that the Board would not permit a union to be successful one month in having a person included in a bar- gaining unit, and then be successful the following month in a charge that the em- ployer was guilty of an unfair labor practice stemming from conversations of that same person. This is especially true when the conversations took place during the month when a union exerted its successful effort to be named to represent that per- son." It seems to the Trial Examiner that there is little merit wrapped up- in this' short argument. The plain provisions of the Act, under which the Board enforces the public interest, require that the rights of employees as set forth in Section 7 be protected. Therefore, the question of DuFour's status should be decided. As noted above, the bargaining unit certified by the Board after the election of August 17, 1954, was a unit agreed upon by stipulation between the parties, that is, the Union and the Respondent; the Board has never actually adjudicated the ques- tion as to whether department heads, including DuFour, were or are supervisors within the meaning of the Act. The Board is not estopped to decide that question in the instant proceeding. Valentine Sugars, Inc., and Valite Corporation, 102 NLRB 313, 314, footnote 3; Crescent Ink and Color Company of Pennsylvania, 100 NLRB 663, 665, footnote 11; Brewster Pateros Processors, Inc., 73 NLRB 833; The Murray Company, 77 NLRB 481. The Trial Examiner, on the preponderance of the evidence, finds that DuFour, during the times mentioned, was a supervisor within the meaning of the Act. DuFour assumed his duties as head of the appliance department, consisting of divisions 62, 63, 68, 69, and 85, on March 17, 1954, and occupied that position con- tinuously up until and including the dates of the hearing in this case. During all these times DuFour had the authority to direct employees in their work in his department and to direct the activities of outside salesmen working out of that department, to effectively recommend the hiring and firing of employees, and otherwise to super- vise the running of his department. Upon request he at times assisted Rumble in checking proposed advertising in the departments of the store. The General Counsel offered testimony, uncontradicted on the record, that certain individuals had applied to DuFour'for positions, had been interviewed by him concerning their experience, and that he had in at least one instance reprimanded an employee for not doing enough' work as an outside, salesman and subsequently discharged him.. James Bright talked to DuFour about a job and the latter then advised Brancato that Bright was coming to work that evening or the following morning; Albert Lindsey presented his application for employment to DuFour and later was instructed by DuFour to report for work; William Knowlton was interviewed by DuFour and later was in- structed by DuFour to come to work; and DuFour on various occasions reprimanded Lindsey, Knowlton, and Bright in connection with their work in his department. There is a contradiction here, more apparent than real, when it is remembered that the store manager, usually before hiring a person, must submit a basic change notice to the district manager before hiring a permanent employee. The Trial Examiner has con- 5 At the time the court of appeals handed down its decision in Scullin Steel, on April 27, 1947. the term "supervisor" had not been defined by statute as it now is in Section 2 (11) of the Act MONTGOMERY WARD & CO., INCORPORATED 663 eluded, however, after a study of the basic organization structure charts submitted in evidence, and hearing DuFour, Lindsey, Knowlton, Bright, and Rumble testify, that without regard to the fact that Rumble had to have final authority from the district manager to hire a permanent employee, that either he had this authority which he delegated to DuFour and exercised it or assumed the authority which would permit DuFour to hire these employees. The record clearly shows that these employees in the appliance department, as well as others in the store, regarded DuFour as a super- visor. The Respondent, on the assumption that DuFour during these times was an em- ployee as distinguished from a supervisor, says that under the Act, it could not as an employer interfere with the freedom of speech of persons in the bargaining unit on the subject of union organization, citing the dicta set forth in Elastic Stop Nut Corp. v. N. L. R. B., 142 F. 2d 371, 376 (C. A. 8); and Humble Oil & Refining Co. v. N. L. R. B., 113 F. 2d 85, 92 (C. A. 5). It refers, too, to N. L. R. B. v. Jas. H. Matthews & Co., 156 F. 2d 706, 709 (C. A. 3). However, it is decided now that DuFour as a supervisor stood in the place of management when he made the state- ments attributed to him.6 The time when the Company should have raised the question as to whether he or any other department head was a supervisor was when it and the Union were engaged in agreeing upon those employees at the Binghamton store who properly could be found to make up an appropriate bargaining unit. That the Union then claimed and the Company then agreed or conceded that a supervisor be included within the unit, cannot release the Company from responsibility for later acts done or words spoken by a supervisor in opposition to union organization. That the claim of the Union was ill-advised or not well-founded cannot excuse the failure of the employer to contest the lack of right or privilege of one of its super- visors to participate, pro or con, in union organizational activities? D. Union organization Early in June 1954, representatives of the Union were engaged in a campaign to or- ganize employees who worked at the Binghamton store. On June 2, several em- ployees, including Irene Gladys Witter, met with representatives of the Union at the home of Agnes Hurst, a company employee, for the purpose of organizing a local union. Witter received an application for membership, which she signed and re- turned to Hurst on'the next day. During the following days, Witter solicited a number of employees for union membership and distributed application cards among them. Frank Felker received a card from Witter, which he signed and returned to Hurst on June 3. Meetings of the Union were held in June, July, and August, some of which were attended by Witter and Felker. The Union had filed its petition for certification on February 16, 1954; the Company agreed to a consent election on August 5, 1954; and on August 25, 1954, after the election held on August 17, the Union was certified as bargaining representative. On May 6, 1954, the New York regional office of the Company transmitted to its store managers, including Rumble, a document called Labor Policy, dated March 15, 1954, issued by the Company's manager of labor relations, setting forth in con- siderable detail the labor policy to be followed by each store manager and instructing him quite carefully concerning the respective rights of management and employees under existing law. Rumble testified that he endeavored to adhere to this labor policy; the Respondent vigorously contends that it was adhered to, and that no responsible member of management engaged in antiunion activity. E. Interrogation by representatives of the Respondent The General Counsel introduced evidence intended to prove that Rumble, Brancato, and DuFour at various times interrogated employees concerning their union mem- bership or activities in violation of Section 8 (a) (1). of the Act. See section III, E, infra. v The question of whether or not other department heads who voted in the election were supervisors has not been considered by the Trial Examiner , DuFour is the only one of them charged with unlawful activities Ceneraily speaking, from the evidence received at the hearing, it appeals that most department heads are primarily salespeople charged with maintaining and if possible exceeding their sales quotas, keeping their respective departments in good order, and seeing that they have sufficient merchandise in stock or conversely that they aie not overstocked with certain items of merchandise. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bruce Shoudy, head of the sporting goods department, testified that approximately a week before the election Rumble approached him and William Dino, another em- ployee in the sporting goods department; and engaged them in conversation: Q. (By Mr. Cavers.) What did he say to you and what did you say to him? A. As I remember it, Mr. Dino and I were in the department and Mr. Rumble walked up to us and in a casual manner said to us, "What do you hear about the Union?" And I turned to him and I said, "Not much," and he said, "Well, have you been to any meetings?" I said "Oh, one or two. Why?" And he just asked me, he says, "Oh, I was just curious as to what went on." I said, "We just talked about the good and bad working conditions of the store and what the Union can do to help them." Then he says, "Well, do you think they can do enough for you to join?" I says, "I haven't decided." And that ended it. Dorothy Marold, employed as head of the hosiery department, testified that some- time prior to the date of the election she called at the office of Rumble to see about additional help for her department; that when she walked in his office Rumble said "something like this: `Did you join the Union,' or `What do you know about the Union,' or something to that effect"; that she did not answer him; and that he then asked, "Do you mean to say that they haven't asked you?" to which she replied, "No, they didn't." On cross-examination, Marold testified that Rumble started out by saying, "Did you join the Union," and that he "said it rather jokingly, like he might have been talking about it to someone else, at least that is the way I took it." She said that she and Rumble were the only ones present at the time. Rumble, when he testified, could not remember this conversation. Irene Gladys Witter testified that 2 or 3 days before the election she engaged in the following conversation with Brancato: Well, I was on the main floor by Mrs. Hurst's department at the time that it happened and he came down through the department and talked about mer- chandise which he was looking over, he was looking over some new merchan- dise that she had got then, and he said, "Well, you know, Gladys we are not going to let you vote in the election." Of course, I said, "Well, why is that?" Well, there had been a joke around the store, I had worked in so many dif- ferent departments, in the basement, that they called me supervisor just as a joke, so he said, "Well, you are a supervisor of toys and a supervisor isn't allowed to vote." So, of course, I said to him "I intend to vote, and you know I intend to vote, yes." This conversation between Witter and Brancato is not denied by the Respondent. The substance of Rumble's testimony was to the effect that he had not questioned' any of his employees as to whether or not they had joined the Union, and that he could not recall talking to any employees about the Union with the exception of a, talk with an employee named Shirley Moore after Brancato had told him that pres- sure had been applied to her by other employees who reportedly told her that she- would be fired if she did not join the Unison. As the Respondent says in its brief, there is no doubt that DuFour discussed the merits of unionization with other employees in the Binghamton store. The Respond- ent says: "There is not always agreement as to what was said, but the testimony is. so uniform on the point that it may be concluded that DuFour's philosophy em- braced opposition to unionization in general , and organization of the Binghamton store in particular." DuFour, as a witness, made no secret of his opposition to the Union. Under questioning by counsel for the Respondent he made this clear: Q. Now, you don't mind my asking, Mr. DuFour, you do have definite opinions. about union matters, don't you? A. Very definite. Q. All right. I won't ask you what they are, but you haven' t hesitated to, express them, have you? A. No sir. As a free individual and a citizen of the United States and as an, employee not connected with management of Montgomery Ward, I was as much entitled to voice my opinion against as they were for. Bright, employed in DuFour's department prior to and at the time of the August 17, 1954, election, related that DuFour had approached him and asked if he (Bright) had been approached by any of the union members ; that Bright replied that he had not; that DuFour then told him not to let the Union influence his think- ing; that the Union did not have a chance of winning the election; and also told him MONTGOMERY WARD & CO., INCORPORATED 665 that if the Union did win certain individuals in the store would be automatically squeezed out or that the Respondent would close the store. DuFour questioned Frank Felker as to what he thought of the Union, and he told DuFour he thought it was a good thing because of the protection it would afford the people in the store; and thereafter, about August 6, DuFour told Felker "that the Company knows all of those that are in favor of the Union and they will lose their jobs"; and further, about August -13 or 14, DuFour told Felker that should the Union be successful they would all lose their jobs because the Company would close the store. Irene Gladys Witter testified in effect that between August 2 and 10, 1954, DuFour asked her if she had signed a union card and that when she replied that she had, DuFour told her she would lose her job because of her union activity. The Respondent contends that DuFour never discussed the Union with Rumble and that on one occasion when he attempted to do so, Rumble requested that he not discuss -anything about union activities in Rumble's office or within his hearing. DuFour said he had been told either by Rumble or Brancato that they were not allowed to discuss union activities and they would appreciate it if he did not men- tion such matters to them. DuFour said that at no time did he overhear Rumble discussing the Union with other- employees. On behalf of the Respondent it is asserted that Brancato engaged in no interrogation at all, but merely made a joke at one time about the supervisory status of Mrs. Witter; and that Rumble on one occasion had a casual conversation with Shoudy about the Union and on another occasion he referred jokingly to Mrs. Marold's union status, and consequently that these isolated and therefore harmless incidents can not be defined as such interfer- ence, restraint, or coercion as is prohibited by Section 8 (a) (1). F. The discharge of Felker Frank J. Felker was first employed by the Respondent at its Binghamton store in June 1942, in the farm equipment department, described as division 87, at a base, pay of $35 per week plus a commission of 4 percent on weekly sales in excess of '$600. He-continued in that job until January 1953, when he quit after a dis- agreement with Orman, who at that time was store manager. He then was receiving $60 per week, plus commission. In March 1953, after Orman had been succeeded by Schofe as store manager, Felker was solicited first by one assistant store manager and then by another to return to his previous job. A few days after the second request, Felker called at the store and discussed the possibility of his returning to work with Schofe. Felker was then employed by Sears Roebuck and Company in a store in a neighboring community, at a salary of $65 per week plus commission. Schofe asked Felker what he would accept in the way of salary to return to his old job and Felker replied that he would leave that up to Schofe. The latter offered $70 per week plus a 4-percent commission on weekly sales over $600. Felker ac- cepted the offer, and a few days later returned to his former job in division 87. About 1 month after that, Rumble succeeded Schofe as store manager. On June 3, 1954, Irene Gladys Witter, who had attended a union organization meeting the night before, gave Felker an application-for-membership card in the Union which Felker signed on the following day and gave to Agnes Hurst, at whose home the meeting had been held. Felker attended 3 union meetings , 1 about the middle of July and 2 others on August 2 and 10; during the latter part of July and the first part of August, during the height of union organizing campaign, he solicited at least 4 employees to join the Union and advanced money to I of them so that he could join the Union. It was during these times, that is, between the last week in June and on August 13 or 14, that the conversations between DuFour and Felker took place, in which DuFour had asked Felker what he thought about the Union, had told Felker that the Respondent knew all those who were in favor of the Union and that they would lose their jobs, and had also told Felker that "if the Union comes in we'll all lose our jobs because Montgomery Ward will close the store." About July 1, Rumble informed Felker that due to low sales in the farm equip- ment department it would be necessary for Felker to take over the toy department, called division 48. Rumble then gave Felker the inventory book for the toy de- partment and told him that the B and X inventory time was approaching and that it would be necessary for Felker to take it.8 On the following 4 days, Felker was 8 B inventory is described as merchandise more than 6 months old and X merchandise is -merchandise rnoie than ], year old The B and X inventory appears to give the store manager and his. assistants considerable concern, it being the stated policy of the Company to liquidate that inventory as quickly as ppstliple, - 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engaged in taking inventory of toy stock in the warehouse, located away from the store; and after completing that inventory, Felker worked in both the farm equipment department, division 87, and the toy department, division 48. Felker at various times also assisted in selling paint, the paint department being headed by Joseph M. McGraw. On Monday, August 16, Felker began a week's vacation. On the following day he voted in the union election, which was held on the store premises. On the follow- ing Monday, August 23, he returned from his vacation and reported for work as usual but found that his timecard was not in the card rack. According to Felker he went to the office and saw Brancato, the assistant store manager, and informed him that something was wrong because his timecard was not in the rack; that Brancato said that nothing was wrong, that he had the timecard there; and that at the time he had Felker's timecard, a receipt book, and an envelope containing Felker's pay in his hand. After Brancato had given Felker the envelope containing his pay, Felker inquired as to "what was wrong" and Brancator told Felker that he would have to release him and that the reason for Felker's release was "by orders of the New York Office." Brancato then offered Felker a part-time job at $20 a week which Felker refused. Felker, then asked Brancato for his week's dismissal pay; Brancato said he had no authority to pay it. About 10 days later Felker re- quested his dismissal pay from Rumble, and Rumble said he could not give it to him and also said, "Frank, I hope you don't hold anything against me. As far as I am concerned, there was nothing wrong with your work." During the approximately 12 years that Felker was employed at the Binghamton store, he had an excellent sales record. In 1943, and again in 1945, Felker was awarded membership in a companywide sales leadership club; during 3 months in 1954 he was high in catalog sales in the Binghamton store; and in 1953 he was high in the sales of tractor equipment in the Binghamton district and was awarded a $10 prize. As noted above, he was requested to return to work in 1953, after he had quit in January of that year, and upon his acceptance of that offer he returned to work at an increase over his former salary. Rumble testified that Felker had a good sales record, and several witnesses testified that Felker was an excellent if not the best salesman in the Binghamton store including McGraw, who succeeded him as head of the farm machinery and toy divisions. The Respondent seems to draw a distinction between Felker as a salesman and Felker as a "merchandiser." Rumble testified that the reasons for Felker's discharge were these: He was guilty of poor maintenance of his department (did not dust properly, did not keep his displays filled, and the floor was not kept clean) and poor merchandising (there was an imbalance of stock requisitioned and sold by Felker); he was a member of a riding pool and therefore was not available for over- time work; and finally, for these reasons, Felker was selected for termination rather than McGraw when top management decided to combine Felker's farm machinery and toy divisions with McGraw's paint division. With respect to the claim that Felker was a poor housekeeper, the Respondent made out a poor case. Rumble and Brancato very seldom appeared in the base- ment where Felker's department was located. McGraw, whose paint department was located in the basement near Felker's farm machinery department, testified that all of the departments in the basement were hard to keep clean, including his own, and that he did not think that Felker's department was less clean than any of the others in the basement. It appears that Felker, as a salesman, or as a "merchandiser," or a combination of both, was required not only to keep his counters free from dust and dirt , but also to use touch up paint and polish on the equipment on display in his department . One of the reasons given for the discharge of Felker-that is, this poor maintenance-would apply equally to McGraw, who was chosen as Felker's successor. Nor does the Trial Examiner place much credence in the story that Felker refused to work overtime because he was a member of a car pool or a group of persons who ordinarily rode together in an automobile to and from work at stated hours in any day. Felker drove his own automobile and he very frankly said that he gave rides to many people back and forth from where he lived in Montrose, Pennsylvania , and the Binghamton store . It appears he did work overtime when it was necessary. Christian Donald Gutemann , presently assistant personnel manager in the New York regional office, was assistant manager at the Binghamton store from April 1952 until during the month of April 1954. Gutemann testified on behalf of the Respondent . He said that Felker overestimated his needs almost every week, that his thinking - was "illogical," and, in substance, that he was a poor merchandiser. Gutemann said that several times , 4 or 5 at least , he had asked Felker to work over- MONTGOMERY WARD & CO., INCORPORATED 667 time but that Felker had said that he could not do so because he had riders in a car pool.9 Orman, store manager at the time Felker quit his employment in January 1953, and Felker, prior to the time Felker left, had had their differences. Felker said, in response to questions on cross-examination, that Orman had told him (Felker) he did not have the authority to write orders and had given him a tongue lashing in this respect; that Orman had told him that he was setting wrong prices on certain sickle bars, with which Felker disagreed; that Orman threatened to fire him because the painters had removed two cans of paint from the paint department while Felker was in charge during the absence of McGraw; and that Orman criticized Felker for failure to liquidate the B and X inventory as fast as Orman thought it should be liquidated. Felker seemed to regard these incidents as more or less minor, as apparently Orman did, except that Felker resented the "tongue lashing" and the third and last discussion between them concerning the paint which the painters had removed, at which time Felker says Orman picked up a hammer, swung it in front of his face, and threatened to fire him. The Respondent places a great deal of emphasis on a criticism directed to Felker concerning his failure to liquidate B and X inventory stock. Criticisms made by Rumble and Brancato are said to be supported also by written directions written on Felker's B and X inventory of division 87 merchandise as of July 30, 1953, and also from entries on the inventory from August through December 1953, showing the extent to which the inventory had been liquidated at or during these times.io For instance, Felker was directed in the fall of 1953 to "make price on chain saws." On a division 6 inventory made as of July 31, 1954, and carried forward to July 1954, Rumble had entered certain directions to Felker to the effect to sell B and X items first, to get certain items on the floor for display, to dispose of certain lawn- mowers and attachments, etc. Likewise, Brancato made certain longhand notes on the B and X inventory, directed to Felker, instructing him in certain respects to push B and X merchandise, or to be sure it was sold first and cautioning him to get rid of old merchandise including a repossessed tractor and other farm equipment and electric fencers used to keep cattle from going astray, to "move" certain small chain saws, and other instructions regarding the handling of merchandise in Felker's farm machinery division. The Trial Examiner is of the opinion, on the basis of the preponderance of the testimony herein, that Felker handled the B and X inventory as well as it reasonably might have been expected to be handled. The New York regional office estimated sales and merchandise which would be needed for each store and each department. Felker testified that his orders for merchandise were subject to cancellation by Rumble-that all Felker did was check off orders for items which he thought were needed and submit the order slip to the order depart- ment. He also testified that during 1954 he was not permitted to carry as much stock as previously because he was not given a large enough "open to buy" (mean- ing a sufficient amount of money to be spent for merchandise to supply his depart- ment) as he had been in previous years. The district manager conceded that the Binghamton store was carrying less merchandise during 1954. Felker says further, without contradiction , that during this time he had quite a lot of old merchandise on hand because the stockroom would send in the latest rather than the oldest mer- chandise from the stockroom bins, which would result in an accumulation of old stock in the warehouse which would show up eventually on the B and X inventory. From all the testimony, and from his examination of the voluminous exhibits herein, the Trial Examiner is convinced that Felker was not fired because he was a poor housekeeper, or was a poor merchandiser, or because he was a member of a car pool. The Respondent does not precisely contend that Felker was discharged for any 1 or all of these 3 reasons , but does imply that they were taken into consideration in its determination as to whether or not Felker or McGraw would be the one to leave upon the application of the requirements of the basic organizational structure promul- gated by the regional office at the end of July 1954 . It is uncontradicted , too, that Felker did reduce his old inventory to the extent of 50 percent on X inventory items and 75 percent on B inventory items. The Respondent contends that although im- provement was shown by Felker in the reduction of X and B inventory in 1954, never- 0 Gutemann also testified that in the course of his duties he had prepared a personnel report, called Retail Store Employee Appraisal, rating Felker in"December, 1953: -The rating itself shows that Gutemann and Rumble considered Felker a satisfactory employee at that time The testimony of Gutemann regarding Felker's faults and his formal ap- praisal of him are quite apart. 10 It was customary in the disposal of old B and X merchandise to mark it down at lower prices and such markdowns would be reflected on the inventories. 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD theless the improvement did not meet company standards which Gutemann said required 100 percent liquidation . In this connection it should be noted that an excessive amount of items in X and B inventories would reduce the merchandise which Felker would be permitted to buy according to his permissible "open to buy." Ac- tually, therefore, it appears that the amount of goods carried by Felker in his de- partment was dependent upon the approval of his order requests by the store man- ager and that , if an excessive amount of items in B and X inventory were on hand, that would tend to reduce the amount of merchandise which he was permitted to carry in his department . Some of his orders for merchandise had been turned down during April, May, June, and July, 1954, principally, it is inferred, because of the amounts of items in his B and X inventory . If, as he claims, he could not get rid of his B and X inventory because he had insufficient display space, because he re- ceived old merchandise and because the stockroom did not keep his department merchandise in proper order to supply, and , more important, because the amount of merchandise allotted to him was decreased by the regional office, it would appear that Felker accomplished quite a lot in disposing of the percentages of B and X inventory that he did. The assertion that Felker was unwilling or refused to work overtime because he had riders dependent upon him for transportation between Montrose , Pennsylvania, and Binghamton seems to be founded more upon assumption that upon fact. Felker never refused directly to work overtime and it appears that some sort of a flexible arrange- ment was worked out as to his hours in the store which would permit him to come in earlier some mornings rather than to stay later in the evening; this with the full ap- proval of Brancato . There is no evidence that Felker ever refused to work overtime, or that his so-called unwillingness to work overtime resulted in any inconvenience or loss to the store. The only occasion when Felker might have been criticized in connection with overtime work was late in June 1954 when he was requested to re- turn to the store at 7 o'clock in the evening and work until 9 o'clock, and he pointed out that was a lot to ask because he was too far away to go home for his evening meal. In this connection he said that Brancato was the one who had asked him to leave at 5 o'clock when the store closed and to come back at 7 and work until 9 . In this conversation Felker reminded Brancato that according "to our basic book of em- ployment , if I can't get back in time the Company is supposed to buy the dinner ticket." After that Felker testified that at a meeting when men were kept over a vote was taken "as to how we would put in our extra hours above the 40 hour week that the store is open . We were required to work 4 extra hours, 44 hours for our basic pay. It was voted that we continue to work straight through until 6 o'clock and go home instead of working until 5 , closing the store and coming back and working 7 to 9.11 The least improbable reason advanced by the Respondent as a cause for Felker's discharge is the contention that because store sales had dropped off in the preceding year and the preceding 6 months, including sales in Felker's department , it was a matter of management judgment and good business to curtail expenses and in so doing to combine Felker 's department (farm machinery ) and the toy department with the paint department , headed by McGraw. In this connection, the Respondent intro- duced records showing month by month the sales of each division in the Binghamton store from January 1953 to November 1954, inclusive , and also a tabulation of the sales in division 87 (farm machinery ) for the same period. This tabulation shows that the farm equipment division sales, as compared to corresponding months of the previous year, increased 15.9 percent during the spring of 1953, but decreased 19.2 percent during the fall of 1953 and 33.9 percent during the spring of 1954. However, it does appear that during the fall of 1953 or thereafter the store discon- tinued the sales of certain items in division 87 such as feeders and certain types of winter equipment. The Trial Examiner has examined the records introduced by the Respondent but from them alone can make no determination as to the figures which show increases or declines in sales in the various departments of the store, including division 87." Nor does the basic organizational chart in effect until the end of July 1954 throw any light on the subject. The testimony of Robert Elliott, who was the operating manager chiefly responsible for the establishment of that chart , and the testimony of C. N. Levengood, district manager during that time, throws considerable light on the subject when considered together with the records presented. In the process of revising the basic organizational structure for each store, during the times mentioned herein , Levengood, as district manager, and Elliott, acting as operating manager , reviewed the existing basic structure in each store in the region and after conference and comparison of sales figures, costs , and so on, would issue a new revised basic as described above (section III, B ). Levengood , as district man- ager, is said to have been interested in maintaining as large a sales force in each store MONTGOMERY WARD & CO., INCORPORATED 669 as possible commensurate with the making of profits according to the basic chart, which would justify the holding of personnel, while Elliott, on the other hand, was interested in reducing costs to the most efficient minimum. Accordingly, they seem to be agreed, Levengood was in the position of defending a holding or acquisition of salespeople and others in each store, while Elliott was interested in cutting down wherever possible without jeopardizing sales and profits. Elliott undertook to explain and to justify the decision to combine divisions 87 (farm machinery) and 48 (toys) with division 75 (paints) under one department head. His explanation was to the effect that he and Levengood had decided during June that on the basis of expected sales for the coming half year, Felker's department would do roughly one-fifth of the business done in the corresponding months of tha preceding year. Therefore, it seemed reasonable to him and Levengood that they would do away with Felker's job paying $70 plus commission and give his work to McGraw, who was earning $60 per week plus commission, and give McGraw a part- time man with an allowance of $20 per week for him out of "basic," anything over that to be paid to him to be the responsibility of the store manager and to be paid out of the store "allowance" (described in section III, B, above). The method of review described by Elliott appears to have been somewhat hit or miss as far as they were concerned, but the result seemed to be rigidly applied so far as the store manager was concerned. For instance, Elliott said that the estimates of future sales, considered by him and Levengood in revising the "basic" in New York, originated in the inventory -control office of the region, that that office furnished them with projected sales figures, and that in most cases he and Levengood accepted them; except, he said, "in some particular instance we knew of something specific that is going to happen in that store that inventory control did not know about ... and that was taken into account and the figures adjusted." Thus, even when Elliott and Leven- good were discussing each particular store they had before them a report from in- ventory control which more or less bound them, and it would appear that they would have to justify any change made in estimated or projected sales as furnished by in= ventory control. The system adopted by the Company for the furnishing of reports to the regional office furnishes the operating manager and inventory control in New York, as well as the merchandising experts for each department in the various stores in the region, with figures which permit the eventual sales figure for each department in each store to be shown for the preceding 6-month period, according to Elliott. At the hearing, Elliott was asked whether or not the items set forth for sale within a particular de- partment are not pretty much under the complete control of the New York office, and whether the inventory supplied to a particular department is according to the demand of the public or according to the figures arrived at after the operating man- ager and the district manager have considered the figures furnished to them by^ in- ventory control. His answers, in effect, seemed to be this: That taken all together, the operations manager and the district manager have the figures before them, con- sider them, and then on the basis of sales trends and expected changes and any other matter they feel bears on the question come up with a new or revised figure for each department or let the old figure stand. In answer to a question as to what standards are used as a basis for these final pro- jections, Elliott testified: I can only tell you what I know the inventory control section does because I didn't personally project these and would not in any case personally project them. But, the way you project any sale is to take the previous year's, sales, knowing what you did the previous year, in this case when we are dealing with 6 months, it would be the previous fall, then the trend which you have run in the first 6 months of this year as far as you have the figures and in July, July 31 you would not have the July figures because we always-and then.... I TRIAL EXAMINER: . well, 1 just don't know what standards you apply. The WITNESS: There is no standard you can apply to projecting sales in retail business.... Well, if there is anything further than the use of the previous year's sales and the basis of the trend at the present time then I certainly do not know what it is, and I once again repeat that I do not project the sales. The inventory, control department does project the sales, and they are set up to do that type of work. TRIAL EXAMINER: Is this a fair statement, and certainly I don't want to press you too hard on this point, but in effect you are saying that experts in inventory, control by reason of experience and a study of trends and their expert knowledge of the retail business, and applying their specialized knowledge in their best judgment The WITNESS: That is very, very, very true. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER: . . . take the prior figures and apply them on the basis of their experience and knowledge, apply them-to this particular situation and come up with the projection. The WITNESS: They apply it to every store in the entire region exactly the same way.... The explanation given by Elliott concerning the revision of the basic organiza- tional chart to be effective after July 31, 1954, can lead only to the conclusion that the basic organizational chart itself portrays the hope of management as to what sales and expenses of a store will be for the following 6-month period. In the preparation of that basic organizational chart there are many factors considered, and actually it simply represents the best judgment of the operations manager and the district manager at the particular time they reach final agreement with the regional manager as to the content of the chart. The process of revision, itself, is loose and furnishes adequate opportunity for the juggling of jobs within any particular store. Elliott has failed to convince the Trial Examiner that only through the application of scientific methods and according to the Company's best judgment Felker became a casualty and that his union activity and membership had nothing to do with his discharge. An examination of the records furnished, taken together with the testimony of Elliott, show that economies could have been effected in far greater measure than were effected simply by firing Felker and combining his two departments with another. Although the basic organizational structure shows that a person was hired at $20 a week to assist McGraw after Felker's job was terminated, actually it appears that that man has been continuously employed since the week after Felker was discharged and actually has earned $50 per week; that Felker was receiving $70 per week whereas McGraw who succeeded him was receiving only $60, and therefore there was a $10 savings effected." Therefore, it seems plain that the store saved $10 per week by terminating Felker's employment. This may or may not be true. Felker was' an- ei celleiit salesmaW,'yet at the time of his' discharge' he'-was offered, a job at $20 per week, which would have wiped out the saving effected by his demo- tion. Further, it was not even considered that he was in charge of the toy depart- ment. The basic organizational chart shows that the toy department, which was Felker's responsibility, was under Shoudy, head of the sporting goods department. Elliott said that the change must have been made at the store level, because the basic organizational chart was supposed to show the actual assignment of toys. Levengood, the district manager, testified that he discussed the elimination of either Felker's or McGraw's divisions as early as March 1954, whereas Elliott testi- fied that the recommendation to combine the two departments was made in late July 1954. Levengood customarily travels from store to store in his district and discusses, from time, to time, changes in organization and personnel with store managers... These various discussions are borne in mind by Levengood when he discusses the revision of "basic" with the operations manager. At or about the time of the re'vision of the Binghamton store "basic" in July, revisions in the basic organizational structures of other stores in the region was made. Both Elliott and Levengood testified that some divisions were consolidated in a number of the stores in Levengood's district, although they did not always agree as to actually what was done in the other stores. Whether or not the combination of divisions in other stores in the region is relevant here, which the Trial Examiner doubts, the fact is that the Binghamton store was the only one in this district where division 87 was combined with another division. During one of Levengood's visits to the Binghamton store prior to March 1954, he discussed with Rumble the situation in the appliance department. They felt that the sales there were not what they should have been, and Levengood then told Rumble he would bear the situation in mind and see if he could find.someone ih his district - to come` into the Binghamton store as appliance department head. Subsequently, DuFour reported for work on March 17. Levengood had sent DuFour on very short notice from Glen Falls to Binghamton. Rumble accepted DuFour as-head of the appliance department without even knowing his name Fortuitously or not, DuFour appeared shortly after the time the Union had filed its petition for certi- fication in February. As related above, DuFour made no secret of his opposition to the Union and certainly, in his position, his remarks, his questioning, and his comments to employees in the store about the Union were injudicious. His com- ments to Felker were particularly pointed. II McHugh, the man hired to assist McGraw, was hired at $50 per week. MONTGOMERY WARD & CO., INCORPORATED 671 The discharge of Felker because of change in "basic" appeals to this Trial Ex- aminer as pure fiction. Felker, an experienced salesman, had been weaned away from a good job to assume the duties of his old job at a $5 a week increase, and then, it is said, that because of "basic," he had to be eliminated in favor of McGraw. The adoption of the new basic organizational chart, insofar as elimination of jobs in the store was concerned, found Felker and Mrs. Witter, two of the most outspoken union adherents among the employees, to be the only ones expendable. The Trial Examiner believes, and finds, that Felker was discharged because of his activities for and in behalf of and his membership in the Union. The Trial Examiner finds further that the interrogation and threats made by DuFour concerning the Union were in violation of Section 8 (a) (1) of the Act, and Felker's discharge was in violation of Section 8 (a) (3) and (1). The Trial Examiner discounts completely the testimony of Gutemann and Brancato to the effect Felker was an unsatisfactory employee. G. The discharge of Mrs. Witter Irene Gladys Witter was first employed by the Respondent in 1942 for a'period ,of approximately 6 months; she was again employed for about 2 months in 1947, being laid off December 24, in January 1948 she was called back to work and worked until October 1949 when she resigned. In June 1950 she returned to work at the request of Oram, then store manager, and remained at work until she was discharged on August 19, 1954. During this last period of employment, she performed duties in many departments of the store in approximately 20 different capacities, including saleswork and work in the stockroom, at the mail order desk, in what is called unit control, and at the switchboard. In June 1954, Mrs. Witter together with a number of other employees attended a meeting at the home of Mrs. Agnes Hurst for the purpose of organizing a union in the store; at this meeting Mrs. Witter was given an application for membership in the union which she signed the following day and gave to Mrs. Hurst. Thereafter Mrs. Witter solicited signatures of other employees to authorization cards which she passed out, and she attended a union meeting in June, 1 in July,- and 2 in August. She had occasion several times to talk to William Buchholzer, an organizer for the Union who sometimes came into the store, and on one occasion Buchholzer talked to Rumble in the store after Rumble had observed him talking to Mrs. Witter. Early in August she was questioned by DuFour as to whether she had signed a union card and she replied that she had, whereupon DuFour told her that she would lose her job "for fooling around with the Union." Again about, that. time, puFour told her that "he wished she would not get mixed up with „the; Union,, because she was liable to lose her job He reiterated his request for her n ,otztgr get "mixed up" with the Union a day or two later, again telling her ,"your wtl1 only; 'ose your job." ,^ During the afternoon of August 19, 2 days after the Union election (in which Mrs. Witter voted), DuFour commented on the fact that she was wearing a,-union, button and then said, "Well, I wouldn't have anything to do with the Union or Anybody in it, if I were you." At 4 p. m. that day, Mrs. Witter received her weekly pay, being paid up until the close of business for the prior day, Wednesday, August 18. At 6 p. in. on the same day she was called to Brancato's office and he told her that "he had to let her go." When she asked him the reason for her ,discharge he told her, "I just can't carry you on the payroll any longer. You are a non-basic payroll. I can't carry you there any longer." Brancato then, in answer to a question, told 'her that she was fired, handed her her timecard to sign for that day's work, and gave her a pay envelope containing that day's pay. Rumble `testified that the reason for her discharge was because she was found to be "unsatisfactory," although she had not at anytime theretofore had her atten- tion called to any unsatisfactory service on her part in the store. Although Rumble testified that some employees had complained about her, the same employees, when called to testify, denied that they had complained about her to Rumble or to any other supervisory employee. The Respondent called Ruth Brewer, employed as a unit stock control clerk, in an effort to show that Mrs. Witter, when assigned to that department, did not perform satisfactorily. She thought Mrs. Witter's work was as satisfactory as that of any of the other girls assigned to that department from time to time. Rumble testified that Mrs. Witter was unsatisfactory, as shown by a com- plaint to him made by Irene McTigue, a department head; he could not remember when this comp'aint was made to him. Mrs. McTigue's testimony is to the effect that she did not complain about Mrs. Witter's work but that she asked Rumble if he would give Mrs. Witter the work he had for her so she could return to her depart- Merit and work for her, and McTigue also testified that Mrs.'Witter was a good worker. 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent contended in this connection that while at work at the catalogue desk, Mrs. Witter's work was unsatisfactory because she made a number of mis- takes in the taking of written orders to be furnished to the customer from catalogue descriptions. Six or seven of these written orders, or copies thereof, were intro- duced as evidence. The Trial Examiner has examined them carefully, listened to the contention of the Respondent in this connection and to the testimony of Mrs. Witter, and considers that Mrs. Witter's explanation of the claimed inaccuracies on these orders is reasonable and explanatory of what could have happened in the taking of a few among many such orders. He does not believe that these comparatively inconsequential errors would be reasonable grounds for discharge or even discipline. When Mrs. Witter was rehired in June 1950, she was not informed that she was put on a "non-basic" payroll and no one, at any time subsequent thereto, ever notified her that she was an extra employee on a "non-basic" payroll. Mrs. Witter, an experienced saleslady, was discovered as an "extra" to be "unsatisfactory" after several years' service, although she previously had been noticed as a "reserve" em- ployee; nevertheless when Elliott and Levengood were engaged in the revision of the organizational chart, she was found to be expendable. Rumble apparently had no say in the matter of the discharge of either Witter or Felker. The Trial Examiner believes, and finds, that Mrs. Witter was discharged because of her activities and membership in the Union, and not because she was found not to be needed because of the revision in the basic organizational chart of the store. Her discharge was in violation of Section 8 (a) (3) and (1) of the Act; her interrogation concerning her union activities and membership by DuFour, Brancato, and others were in violation of Section 8 (a) (1) of the Act. The Trial Examiner is of the opinion that Levengood and Elliott worked out the plan to get rid of two of the most active union adherents by the use of a revision of the "basic." It would almost seem that DuFour was put into the Binghamton store'by Levengood so that he could observe the concerted activities of the employees and perhaps attempt to discourage union activities.12 CONCLUDING FINDINGS Section 8 (a) (1) of the Act, read in conjunction with Section 7, guarantees to employees, free of their employers' interference, restraint, or coercion, "the right to self-organization, to form, join, or assist labor organizations . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. .. . " When employer-interference takes the form of discrimi- nation in employment, which has the foreseeable effect of discouraging union mem- bership, the employer's conduct is also within the prohibition of Section 8 (a) (3) of the Act. Radio Officers' Union of the Commercial Telegraphers Union, AFL v. N. L. R. B., 347 U. S. 17. Here the Trial Examiner is satisfied that substantial evidence supports a finding that the Respondent interfered with, restrained, and coerced its employees in violation of Section 8 (a) (1) of the Act; and that sub- stantial evidence supports a finding that the Respondent violated Section 8 (a) (3) and (1) of the Act by discriminatorily discharging Felker and Witter. It is clear enough that the Respondent through interrogation of employees concerning their union membership or activities violated Section 8 (a) (1); 13 that by threatening its employees with loss of their jobs or other economic reprisals for membership in the Union, or activities in support thereof, the Respondent violated Section 8 (a) (1) of the Act; 14 that by statements made to certain employees that the Respondent was informed as to those that were in favor of the Union and -that they would be discriminated against because of their union membership, the Respondent violated Section 8 (a) (1) of the Act; 15 and by discriminatorily discharging Frank Felker and Gladys Witter because they joined, were active on behalf of, or assisted the 12 The Respondent inserted the following paid advertisement In the Binghamton Press, August 27, 1954, issue : "Help-Men or Women Salesmen and Salesladies Full or part time Experience necessary Apply at store office, Montgomery Ward " The Trial Ex- aminer does not credit testimony to the effect that the advertisement was run for the pur- pose of hiring extra employees for the Christmas rush 19 Oraher 3fan-afacturinq ("ompanil Inc , 111 NLRB 167; Blue Flash Express, Inc.. 109 NLRU 391 . Si(ia(uae Color Pre.s.s, Inc, 103 NLRB 377, entd. 209 F 2d .596 (C A 2), cert detued 3-17 U S 99); Bausch A Lomb Optical Company, 107 NLRB 790, enfd 217 F 2d 575 (C, A 2) ; The Syiatvisc Stamping ('onipaui( 102 NLRB 2:10, onfd 208 1' 2d 77 (C A 2) v; Nashua Manuf,mcl,m nip Col Potation of'Iraas, 103 NLI(1; 337, and cases citod therein in footnote 7 of the Intermediate Report MONTGOMERY WARD & CO., INCORPORATED 673 , Union, or engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection, the Respondent violated the provisions of Sec- tion 8 (a) (3) and (1) of the Act. The Respondent contends that DuFour was not acting on behalf of the Respondent in making the statements attributed to him, that the Respondent was, powerless to stop him because he was a nonsupervisor, and that it follows that the charges must be dismissed. The Trial Examiner has found above and again finds on the pre- ponderance of the evidence in the record herein that DuFour was, during the times relevant hereto, a supervisor within the meaning of the Act. Accordingly, the Respondent must be considered to have been bound and to now be bound by his activities in opposition to the efforts of the employees to engage in concerted activities for themselves and on behalf of the Union. Certainly, the predictions made by DuFour before the election as what might happen or as to what would happen to certain employees "if the Union came in" could readily result in dis- couragement of membership in the Union, and in the concerted activities of employees. It is contended on behalf of the Respondent that the conversations of Brancato and Rumble, even if they occurred as related by witnesses presented by the General Counsel, "definitely fall into the category of casual, friendly, isolated instances," citing Blue Flash Express, Inc., supra. If the remarks of Rumble and Brancato stood alone, they might well be considered the sort of isolated remark which would not justify the issuance of an order in this case. However, these remarks, con- sidered together with DuFour's unrestrained and demonstrated opposition of the Union, followed by the discharges of Felker and Witter, certainly cannot be ignored. The Trial Examiner finds that these remarks, taken in whole context, constitute violations of Section 8 (a) (1) of the Act. The General Counsel alleges that the Respondent decreased the rates of pay of Felker and Mrs. Witter.. The record shows that Felker, at the time of his discharge, was offered employment at $20 per week, which he refused. Mrs. Witter testified, after the Respondent offered testimony to the effect that she had been offered and refused to accept a job as switchboard operator, that in April she was told by Brancato that she was to "take the switchboard"; and that she asked Brancato "if there was more money" and he said he would have to consult Rumble. The regular operator at that time was paid $33 per week; Mrs. Witter received $35 per week. The Trial Examiner finds that the General Counsel failed to prove that the rates of pay of Felker and Mrs. Witter actually were reduced during their employment by the Respondent. IV. -THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the activities of the 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 the Respondent has engaged in certain unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The Trial Examiner has found that the Respondent has discriminated in regard to the hire and tenure of employment of Irene Gladys Witter and Frank Felker. It will be recommended that the Respondent offer to each of them full and im- mediate reinstatement to a former or substantially equivalent position and make him whole for the loss of pay he may have suffered as a result of the discrimination against him by payment to him of a sum of money equal to that which he would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings, the loss of pay to be computed on a quarterly calendar basis in accordance with the formula adopted by the Board in F. W. Woolworth Company, 90 NLRB 289. Upon the basis of the foregoing findings of fact, and upon the entire record of the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Retail Clerks International Association, Local Union No. 1687, AFL, is a labor organization within the meaning of Section 2 (5) of the Act., 390609--56-vol 115-44 - -674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. By discriminating in regard to the hire or tenure of employment of Irene Gladys Witter and Frank Felker, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By such discrimination, and by interrogating its employees concerning their membership in and activities on behalf of the Union, and by interfering with, re- straining, and coercing its employees in the exercise of the rights guaranteed by 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 4. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Archer Mills, Inc., and,American Federation of Hosiery-Workers; AFL-CIO, Petitioner. Case No. 10-RC-3286. February 29, 1956 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Edwin R. Hancock, hearing ,officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce -within-the meaning- of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioner seeks a unit of the Employer's production and maintenance employees. Contrary to the Employer, the Petitioner would exclude full-fashioned knitting machine fixers, watchmen, the mechanic in the boarding department, the plant clerical in the knitting department, the head cleaner, the assistant foreman of the shipping department, the needle instructor, the salesclerk in the "Archer Shop," and the dye clerk in the dyehouse. I At the hearing, the Employer made `a motion to dismiss the petition which the hearing officer -referred to the Board for a ruling The motion is essentially based on the follow- ing,grounds: v(1) That' Petitioner -;failed to obtain a sufficient showing of' interest;.r(2) that Petitioner failed to make a formal request of recognition of the Employer before filing its petition ; and (3 ) that the unit sought is inappropriate. As to ground (1), it is well established that the sufficient showing of interest is a mat- ter for administrative determination and therefore may not be questioned at the hearing Sachs-Lawwloi Company, 112 NLRB 507 Furthermore, we are administratively satisfied that the Petitioner has sufficient showing of interest. With respect to ground (2), it is also well settled that a formal request for iecognition is not a prerequisite for the filing of a petition Therefore, and because the Employer refused to recognize the Petitioner at tho hearing, we find no merit in this ground. Crn- eial Shoe Corporation , 109 NLRB 618, 619 For reasons stated in paragraph numbered 4, infra, we find no went in the Employer's contention conceinnig the appropriateness of the unit Accoidingly, the motion is denied 115 NLRB No. 98.