Montgomery Ward & Co., Inc.

76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Post at its meeting hall or halls, where employees of Wright Line Division of Barry Wright Corporation who are members of Respondent meet, copies of the attached notice marked "Appendix." 3 Copies of said notice, to be furnished. by the Regional Director of the First Region (Boston , Massachusetts), shall, after being duly signed by an authorized representative of the Respondent , be posted by it immediately upon receipt thereof , and be maintained by it for a period of 60 consecutive days thereafter , in conspicuous places, including all places where notices to its members 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 . Supply the Company with properly signed copies of said notice for posting by the Company at the Company's premises. (b) Notify the Regional Director for the First Region , in writing, within 20 days from the date of this Decision and Recommended Order , what steps the Respondent has taken to comply ,herewith.4 sin the event that this Recommended Order shall be adopted by the Board , the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice . In the further event that the Board 's Order be enforced by a decree of a United States Court of Appeals , the words "A Decree of the United States Court of Appeals , Enforcing an Order" shall be substituted for the words "A Decision and Order." 4In the event that this Recommended Order is adopted by the Board , this provision shall be modified to read: "Notify said Regional Director , in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL MEMBERS OF UNITED STEELWORKERS OF AMERICA , AFL-CIO Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Rela tions Act, as amended, we hereby notify you that: WE WILL NOT inflict or threaten to inflict bodily injury on the employees of Wright Line Division of Barry Wright Corporation, or inflict property damage on them or threaten such damage. WE WILL NOT block the entrance to said company 's plant or prevent (by means of threats or other coercive conduct ) the entrance to or exit from said company's premises. WE WILL NOT in any manner restrain or coerce employees in the- exercise of rights guaranteed them in Section 7 of the National Labor Relations Act, as amended. UNITED STEELWORKERS OF AMERICA , AFL-CIO, Labor Organization. Dated------------------- By-------------------------------(Title)----- (Representative This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Boston Five Cents Savings Bank Building, 24 School Street, Boston , Massachusetts, Tele- phone No. 523-8100, if they have any question concerning this notice or compliance with its provisions. Montgomery Ward & Co., Incorporated and Richard J. Pisarski and Local 164, International Brotherhood of Teamsters,'Chauf- feurs, Warehousemen and Helpers of America , Ind. Cases Nos. 7-CA-3937 and 7-CA-3958. February 25, 1964 DECISION AND ORDER On May 6, 1963, 'Trial Examiner W. Edwin Youngblood issued his Intermediate Report in the above-entitled proceeding, finding that 146 NLRB No. 1. MONTGOMERY WARD & CO., INCORPORATED 77 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 attached Inter- mediate Report. He further found that the Respondent had not en- gaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the Respondent and the General Counsel filed exceptions to the Inter- mediate Report and 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 entire record in these cases, including the Intermediate Report and the ex- ceptions and briefs, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, as modified herein. 1. We find, in agreement with the Trial Examiner, that Supervisor Shankin unlawfully interrogated employee Pisarski and threatened Pisarski and employee Bobcean with reprisals because of their union activities, and that the Respondent thereby violated Section 8(a) (1) of the Act. 2. We also agree with the Trial Examiner that the remarks made to employee Enders by the Respondent's district manager on October 6, 1962, did not constitute a violation of the Act. The evidence shows that Mary Enders is a clerk employed in the service department at the Respondent's Adrian, Michigan, store. Her office is separated from the store entrance by a counter. Behind her office is the workroom where appliances are serviced. Enders' duties require her to take customers' orders for servicing appliances and to make out work orders scheduling the work of servicemen. On August 24, Ward, an appliance serviceman, was laid off, al- legedly because there was insufficient work for him and the one other serviceman. Ward filed a grievance with the Union, which is the representative of the Respondent's employees in a unit including Enders and the appliance servicemen. Business Agent Seegert, in investigating the grievance, went to see Enders, and asked her how much work was pending and whether there was enough work for two men. In compliance with Seegert's inquiry, Enders looked over the work orders, some of which were on the wall back of her desk, visible but not readable from the other side of the counter, and she there- upon gave Seegert the information that- there were "quite a few work orders pending there," and added her opinion that these orders were "more than.one man could take care of." On October 6, Seegert discussed the Ward grievance with Smith, the Respondent's district manager, and informed Smith that he had talked with Enders, who told him there were "quite a few" pending work orders. In the course of their discussion, Smith showed some 78' DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the work orders to Seegert. Thereafter, Smith called Enders into the room, and asked if she had told Seegert about the pending work orders. When she answered that she had done so, he told her she was "on the spot." Enders stated that she thought, when the union rep- resentative questioned her about something like that, she was sup- posed to answer him. Smith replied that she was not to give out any information about work orders to anyone, and she was "on the spot" if she did. The Respondent contends, in effect, that the work orders were its property and that it had the right to control the disclosure of their contents. The General Counsel contends that Enders had the right under the Act to assist her union in processing the grievance by sup- plying information from her Employer's records, and that the Re- spondent violated the Act by instructing her not to do so. . The issue presented is one which requires an evalution of conflict- ing rights and policies-the Employer's right to regulate the use of his own property, in this instance his work orders or records, on the one hand, as against the right of a bargaining representative to receive information enabling it to process a grievance on behalf of an em- employee in the unit. Although the courts have recognized that "some dislocation of property rights may be necessary in order to safe- guard the rights of collective bargaining," 1 such dislocation, if it is to occur, must be soundly based. The Board has held that a collective-bargaining representative has a right, under Section 7 of the Act, to obtain information necessary for the processing of a grievance .2 Moreover, in the instant case, the information contained in the work schedules was clearly necessary to the processing of Ward's grievance concerning his layoff for lack of work. The Respondent was therefore required, upon proper re- quest, to supply such information to the Union. That the Respondent was mindful of this obligation is clearly indicated by Smith's vol- untarily showing some of the work orders to Seegert. However, the work schedules were the property of the Respondent, and it was en- titled to full control over them in order to be able to meet its obliga- tion as the need arose. To hold otherwise would be inconsistent with the salutary principle, heretofore enunciated by the Board, that any disagreements which might arise between an employer and the rep- resentative of • its employees over the conditions for turning over information which the employer is required to furnish should be established at the bargaining table.' Consequently, because the Re- N.L.R.I3. v. Cities Service Oil Company, 122 F. 2d 149 , 152 (C.A. 2). 2 Square D Company, 142 NLRB 332 ; American Sugar Refining Company, 130 NLRB 634. ? See American Cyanamid Company, 129 NLRB 683, 684. MONTGOMERY WARD & CO., INCORPORATED 79 spondent had the right to control its records,' it had the right, in implementation thereof, to instruct its clerk, Enders, not to give such information directly to the Union. Accordingly, the Respondent's instructions to Enders did not interfere with or coerce Enders within the meaning of the Act.5 We shall therefore dismiss this allegation of the complaint. 3. We further find, in agreement with the Trial Examiner, that the Respondent did not violate the Actby the manner in which its pre- hearing interview with employee Enders was conducted on Febru- ary 7, 1963, nor by its inquiry during the interview as to whether she had given any statements to the Board.' The facts show that sometime after the original complaint was is- sued, and a few days before the hearing herein, the Respondent's store manager, Goudy, came to Enders' desk and asked her to come with him for a few minutes. When Enders asked, "To the store?" Goudy re- plied, "Put on your coat." Gaudy then took Enders to a nearby hotel, where they were met by the Respondent's district manager, Smith, and the Respondent's attorney, Matheson. The four then proceeded to a conference room in the hotel, which had been selected for the inter- view because the two private rooms at the Respondent's store were in use. Matheson advised Enders that he was investigating a legal matter pending against the Respondent; that his questions would be directed to her earlier conversation with Smith regarding the dis- closure to the Union of information from the work orders; and that whether she was for or against the Union was "her own choice" and his questions had nothing to do with that. Matheson then questioned Enders about her conversation with Smith relating to work orders, took down her answers in writing, and asked her to read, correct, and sign the statement before a notary public, which she did. At the close of the interview, Matheson asked Enders if she had given any :statements to the Board. So far as appears, Matheson neither asked Enders for a copy of the statement nor inquired as to its contents. Here again we have an issue requiring a balancing of existing rights and policies. Thus, the Board recognizes that an employer must be permitted to interview its employees in the preparation of its 4 We do not agree with the view expressed in the dissenting opinion that an employer's right of control over the information contained in its business records is limited to con- fidential records "of the type reflecting management policies in the field of labor relations." 6 Accord: Clearwater Fixishing Company, 100 NLRB 1473, where the Board, in refusing to find the discharge of a clerk for giving the union information from records in her care to be a violation of Section 8(a)(3),in the absence of any evidence of discriminatory in- tent, stated that the employer was entitled to have as custodian of its records an empioyee in whose discretion it had implicit confidence. (Enforcement denied as to violations found, 203 F. 2d 938 (C.A. 4).) G Member Fanning dissents from this finding and in this respect concurs in the dis- senting opinion of Member Brown. 74"70-65--vol. 146-7 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case for hearing. However, the employer is restricted to questions relevant to the charges, and may not go beyond the necessities of trial preparation to pry into matters of union membership or activity, dissuade employees from joining or remaining members of the union, or otherwise interfere with or intimidate them in the exercise of their rights under the statute? The General Counsel contends that the Respondent exceeded these permissible limits and intimidated Enders by the manner in which it interviewed her. We do not agree: The hotel conference room was chosen for the interview because it was the most convenient.place available. We are not persuaded that the selection of the conference room in a nearby hotel was, in the circumstances, unreasonable or intimidatory. There is no evidence that the purpose of-the interview was anything other than the preparation of a defense to the com- plaint, which directly involved Enders. The questions were directed solely to the issues raised in the complaint. Further, Enders was specifically informed of the purpose of the interview, and was told that the Respondent was not concerned with her attitude toward the Union. In view of the absence of .any indication that the Respondent had any intention of intimating Enders, and its express disavowal of any interest in her attitude about the Union, we are not prepared to hold, as the General Counsel suggests, that the Respondent was re- quired, in addition, to advise her that she was entitled to refrain from answering its questions. Nor. do we agree with our dissenting col- league that the evidence shows that the Respondent's agents at this interview "forced" Enders to answer their questions, "extracted" in- formation from her, or coerced her in any way. The General Counsel alleges further that the question whether Enders had given any.statements to the Board exceeded the permis- sible limits of a pretrial interview, because the question did not pertain to an issue raised in the complaint and was not necessary to the Re- spondent's pretrial preparations. We disagree. The obvious pur- pose of such a question is to obtain information for use as the basis for a proper demand for such affidavit, to which the Respondent would be entitled in the event Enders appeared as a witness against it in the Board proceeding. The information sought to be elicited is therefore clearly relevant and necessary.' Although the Board has found that an employer demand, or request, for a copy of a state- ment which its employee has given to the Board exceeds the limits of lawful pretrial interrogation," the considerations upon which those cases rest are not applicable here. May Department Store Company, 70 NLRB 94, 96, enfd. 162 F. 2d 247 (C.A. 8) ; Joy Bilk Mills, Inc. v. N.L.R.B., 185 F. 2d 732 , 743 (C.A.D.C.), enforcing 85 NLRB 1263. s Ra-Rich Manufacturing Corporation, 121 NLRB 700. W. T. Grant Company, 144 NLRB 1179 ; Winn-Dixie Stores, Inc., 143 NLRB 848; Hilton Credit Corporation, 137 NLRB 56 , footnote 1 ; Henry I. Siegel Co., Inc., 143 NLRB 386, footnote 1; Texas Industries, Inc., 139 NLRB 365. MONTGOMERY WARD & .CO., INCORPORATED 81 The Board has recognized that such statements frequently contain information, bearing on the affiant's union attitudes, sympathies, and activities, which is not relevant to the employer's defense to the unfair labor practice charges, and concerning which an employer is pro- hibited by Section 7 from questioning its employees; in consequence, a request by an employer for a copy of the statement may be an attempt to obtain indirectly what it is prohibited from obtaining directly.10 It is clear, however, that where, as here, no copy is re- quested, no such attempt can be inferred. The Board has also rec- ognized that employer requests for copies of affidavits interfere with the Board's processes because they tend to create in the employees the impression that their employer may obtain access to their statements, which impression would inhibit the employees' willingnless to give such statements for fear of incurring their employer's displeasure and pos- sible reprisal.ll However, a question limited only to whether a state- ment has been given falls far short of creating the impression that the employer has access to the contents of the statement. Accord- ingly, we find, as. did the Trial Examiner, that this conduct by the Respondent did not constitute a violation of the Act, and we shall therefore dismiss this allegation of the complaint.12 ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner, with the following modifications: 13 1. Substitute the following for the first paragraph : Upon the entire record in these cases, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, ' the National Labor Relations Board hereby orders that the Respond- ent, its officers, agents, successors, and assigns, shall: 2. In paragraph 1(d), delete "the National Labor Relations Act.", and add: "Section 8(a) (3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959." 3. Modify provision 2(b) in accordance with footnote 27 of the Recommended Order. W. T. Grant Company, supra. - W. T. Grant Company, supra ; Winn-Dixie Stores, Inc., supra. 12 The notice shall be modified in accordance with footnote 26 of the Recommended order; and, by substituting, in the fourth indented paragraph, the words "Section 8(a) (3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and,Disclosure Act of 1959" for the words "the National Labor Relations Act". 13 Corpus Christi Grain Exchange, Inc., 132 NLRB 145, cited by our dissenting colleague, is inapposite , as that case did not, as here, involve an inquiry made in the course of the preparation of a defense to a complaint. 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Delete the last paragraph and add the following : IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent violated the Act by conduct other than that found to be violative herein; be, and it hereby is, dismissed. MEMBER BROWN, dissenting in part : I join my colleagues in finding that the Respondent engaged in unlawful interrogation and threats of reprisal against employees be- ,cause of their union activity in the manner indicated in the Inter- mediate Report. However, I would also find that Respondent en- gaged in unlawful threats and interrogation by its conduct toward employee Enders. On the basis of the credited testimony, the Trial Examiner found that Respondent's district manager, Smith, verbally reprimanded Enders because she gave information to her union representative for use in the processing of a grievance and that Respondent threatened her with disciplinary action if she again similarly assisted Local 164. Like my colleagues, I agree that the record supports this finding of fact. I cannot agree, however, that Respondent's conduct was lawful in the circumstances. It is undisputed that Enders, who takes customers' orders for servicing appliances, in response to an inquiry by her business agent, told him that she thought there were more pending work orders than one serviceman could handle. She did not show any of the Respond- ent's business records to the union representative, nor did she disclose their content.14 Instead, based upon her knowledge of the workload and her job experience, she gave the representative her considered opinion as to the number of repairmen needed to handle the existing volume of work. It is also apparent that this information was ex- tremely important to her union agent in his preliminary investiga- tion of the grievance involving a layoff for lack of such work. For it was on the basis of Enders' valued judgment that the representative concluded that the grievance which he was investigating warranted processing. Indeed, if Enders had given a contrary opinion, the grievance probably would not have been processed. There can be no question but that the volume of available work and the number of jobs thereby provided is always a matter of vital common concern to the employees and their bargaining agent.15 And clearly here Enders, 14 On this basis alone, as well as upon the ground that here Respondent knew that union activity was involved, the Clearwater case relied upon by the Trial Examiner and alluded to with approval by the majority is distinguishable from the instant situation. 1sAecord: Paul Cusano, d/b/a American Shuffleboard Co., 92 NLRB 1272, enfd. 190 F. 2d 898, (C.A. 3), wherein the Board held protected a report made by an employee, who had attended a Board conference as a union representative, of the employer's gross income labeling it as "fantastic earnings ." Noting that even if false , the report was not de- liberately or maliciously so, the Board stated: "Employees do not forfeit the protection of the Act, if in discussing matters of such vital common concern as their employer's financial status, they give currency to inaccurate information." MONTGOMERY WARD & CO., INCORPORATED 83 while assisting her union representative with respect to the grievance of an employee in her unit by supplying, her evaluation of the. per- tinent circumstances, was engaged in concerted activity. Preparation, presentation, and prosecution of grievances have long been recognized as concerted activity falling within the protection of Section 7 of the Act.16 Nevertheless, the majority bases its conclusion that Respondent's conduct was lawful upon some nebulous and vaguely defined "prop- erty right" of Respondent to control information contained in its records. I do not believe that the Board or courts have ever rec- ognized such a "property right," vis-a-vis the statutory bargaining agent, with respect to disclosure of information contained in records which, as here, are not confidential.14 However, assuming, arguendo, that the Employer has such a "property right," I submit that this is not the issue presented to the Board by the facts in the instant case. Enders not only did not reveal to the business agent the contents of the work orders, she did not even tell him the number. She merely gave him her opinion that there was more work than one man could do. Enders could have been completely wrong in her evaluation. In any event, the Respondent was in no sense bound by her judgment. To characterize this as a disclosure of information concerning the con- tents of Respondent's records is, in my view, the ultimate in tenuity. More importantly, however, to hold that an employer can prohibit an employee from doing what Enders did here is to exalt out of all proportion an employer's _so-called "property right" over the em- ployee's right to communicate to his bargaining representative in- formation concerning his working conditions. Enders' job did not involve responsibility for evaluating work orders and making recom- mendations to the Respondent as to the number of men required to handle such orders. If it did, then there might be some support for protecting the Respondent's "property right" to "full" control over its records. Rather, the situation here is little different than if a truckdriver were to advise his bargaining representative that on the basis of the delivery slips he has been given and the trips he has 16 See Bowman Transportation, Inc., 134 NLRB 1419 , and cases cited therein. Also see Thomas W. Dant et al., d/b/a Dant t Russell Ltd., 92 NLRB 307, enfd. 344 U.S. 375; N.L.R.B. v. Kennametal, Inc., 182 F. 2d 817 (C.A. 3), enfd. 80 NLRB 1481, involving activity in preparation for filing of a grievance ; Sherry Manufacturing Company, Inc., 128 NLRB 739, wherein, absent a representative, an employee presented a grievance on behalf of himself and fellow employees. 17 The case does not involve confidential records or information of the ' type reflecting management policies in the field of labor relations, the kind which an employer has a right to withhold from the union . The Board , as a matter of policy, excludes from bargaining units employees who perform services in a confidential capacity to persons who formulate, determine, and effectuate management policies in the labor relations field, so that em- ployees are not placed in a position where they have divided or conflicting loyalties be- cause of knowledge gained from their jobs or judgments 'based on such knowledge. See Twenty-third Annual Report ( 1958), pp. 41-.43; Twenty-seventh Annual Report ( 1962), pp. 76-77. 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made he thinks he is entitled to'a, raise which he would like his rep- resentative to seek for him. Apparently my colleagues would find lawful employer restriction on this communication of information by the truckdriver to his agent. The obvious effect of such a finding is to so completely divorce an employee from his union as to seriously impair the latter's effective- ness as bargaining representative. If employees are forbidden to use the intelligence gained through their job experience and to communi-. cate the facts concerning existing employment conditions to guide their representative in the bargaining process, there could be no mean- ingful collective bargaining. For the union must represent the 'em- ployees' interest in establishing the terms of employment and working conditions and in administering any agreement with respect thereto. In performing this basic function, the representative stands in the position of the employees collectively and must have a comprehension of the circumstances affecting their interest, including information such as workloads and employment complement, in order to deal in a relevant manner with respect thereto. I cannot subscribe to a posi- tion which purports to effect a balance between conflicting rights of an employer and a bargaining representative by so hampering and placing in a straitjacket the relationship between the employees and their union. According to my colleagues, because the records relevant to the grievance involved were of the type which an employer would be re- quired by law to produce upon demand by the union, the Respondent has a right to protect its ability to produce such records in the event' a demand is made. I fail to perceive how Enders' opinion, expressed to her representative, in any way diminished Respondent's 'ability to fulfill 'its legal obligation to furnish such records upon request.'8 In view of the foregoing, I conclude that Enders was entitled, under the protection of Section 7 of the Act, to assist the bargaining rep- resentative in the investigation of a grievance in the manner that she did. When the Respondent threatened Enders for doing so and or- dered her not to engage in such activity in the future, it interfered 18 Whether an employer may limit to official channels disclosure of the type of records to which a bargaining representative would be entitled upon appropriate demand is not in issue here since there was no disclosure of records by anyone other than an official of Respondent. In this connection , my colleagues described as "salutary " the principle .previ- ously enunciated in the American Cyanamid- case, footnote 3, supra, "that any disagree- ments which might arise between an employer and the representative of its employees over the conditions for turning over information which the employer is required to fur- nish should be established at the bargaining table," and express their objective of guard- ing against any finding inconsistent therewith, apparently implying that the Union and Enders took unilateral action in this respect. While I do not concede that the point is involved here, I would suggest that it is highly inconsistent with that principle to hold, as the majority does here , that an employer may, with impunity, make a unilateral rule covering the conditions for disclosure in complete disregard of the employees ' statutory representative. MONTGOMERY WARD & CO., INCORPORATED 85 with and. coerced her in the. exercise of rights guaranteed by Sec- tion 7, and I would, find- that Respondent thereby violated Section 8.(a) (1) of the Act. I would also find that Respondent's interrogation of Enders was coercive in violation of Section 8(a)'(1) of the Act, both in context and content. The Board and courts 19 have held that, despite the in- herent danger of coercion therein, an employer is allowed the special privilege of interviewing employees for the sole purpose of discov- ering facts within the limits of the issues raised in a complaint, where such interrogation isnecessary in preparing a .case for trial, and does not go beyond the necessities of such preparation to pry into union matters or otherwise. to interfere with the statutory rights of em- ployees. But the mere fact that an occasion arises giving an employer an opportunity to exercise this privilege does not afford it a license to justify interrogation in such a manner as would itself convey purposeful intimidation and coercion. With, respect to the context of the interrogation here, as noted by the Trial Examiner, Enders was approached by her supervisor and ordered to come with him. To her question as to the destination the supervisor avoided a direct reply but instead instructed her to "put your coat on." Despite her inquiry, she was not told where she was going, or why. Instead, she was escorted off the Employer's premises to a nearby hotel where they were met by Respondent's district man- ager and attorney and taken to a conference room where she was subjected to interrogation by the attorney. Not only was the purpose of departure 'from her work station withheld from her up to this point, but at no time was she ever advised that she was entitled to refrain from answering the interrogatories or free to leave. The mere statement of the events graphically suggest the psychological atmos- phere of fear thereby created. ' - Using employment authority to take the employee from her work station and escort her into unfamiliar surroundings in the presence of the Employer's officials and attorney, subjecting her to questioning concerning her concerted and protected activity, and proceeding to extract from her a statement signed before a notary public, all with- out first explaining the destination and purpose and obtaining the employee's freely given consent, is conduct which is itself grossly intimidating. For the "method of interrogation ... imbue[d] the interview with an unnatural formality . . ." and conveyed to the em- ployee the "false impression" that the Employer had a right to con- duct the interview in this manner and the employee had no rights 19 See, e .g., Joy Silk Mil18 v. N.L.R.B., 185 F. 2d 732 (C.A.D.C.), cert. denied 341 U.S. 914: N.L.R.B. v. Guild Indndtrie8 Manufacturing et al., 321 F. 2d 108 (C.A. 5), enfg. 135 NLRB 971. 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the matter.20 In these circumstances, telling Enders that whether she was for or against the Union was "her own choice" is no reas- surance and could hardly be said to relieve the coercive atmosphere or convert her forced participation into a voluntary act 2' Nor does the fact that Respondent's administrative offices may not have been available at that time alleviate the coercive character of Respondent's conduct upon the employee, to whom this factor was never com- municated. In my view, the manner in which Enders was authori- tatively escorted to the hotel and questioned concerning her protected concerted activity was itself coercive in violation of Section 8(a) (1) of the Act. My colleagues observe that the purpose of the interrogation was the preparation of a defense to the complaint which directly involved Enders and that the questions were directed solely to the issues raised in the complaint. However, insofar as the complaint herein related to the incidents involving Enders, as pointed out above, Respondent's district manager himself was a participant and Enders had already been questioned by him concerning her part in preparing the griev- ance. Thus, the facts were so well known to Respondent that there is a serious doubt as to whether any information could be - ad-ded by the interview, much less needed for the preparation of a defense to the complaint. Further, I do not agree that Respondent's privilege here, if it were presumed necessary, extended to the inquiry of Enders as to whether she had given any statements to the Board. Such. statements or affidavits become available to an employer upon proper demand and under the safeguards afforded by trial procedures only after the em- ployee has testified. Contrary to the suggestion of the majority, there is no need for an employer to determine in advance of a hearing whether such an affidavit exists in order to prepare for a proper demand in the event the employee testifies. Indeed, the only prepa- ration which is necessary or possible for a proper demand is to know the procedural requirement that it be made when a witness has. been given over by the General Counsel for cross-examination and while he is still on the witness stand 22 Moreover, the informa- 20 See N.L.R.B. v. Lindsay Newspapers, Inc., 315 F. 2d 709 (C.A. 5), enfg. as modified 130 NLRB 680. The privilege extended to an employer in the preparation of his defense is not a sub= stitute for a subpena wherein the involuntary witness is given not only legal protection from intimidation and reprisal but also the opportunity to obtain the advice of counsel as to what questions he must answer . When a respondent employer selects this means of preparing a defense it assumes the responsibility of taking extra precautions to avoid intimidation and coercion for the circumstance is "one that requires the utmost in care and good faith on the part of company counsel." N.L.R.B. v. Guild Industries Manu- facturing et al., 321 F. 2d 108 (C.A. 5). Indeed, it is highly questionable whether in- formation obtained by means of such intimidation and coercion has any probative value: m See Arkansas-Louisiana Gas Company, 142 NLRB 1083. MONTGOMERY WARD & CO., INCORPORATED 87 tion of whether or not any employee statements have been given to a Board agent in itself has no particular relevancy to issues raised in a complaint. Unless and until an affiant testifies as a witness for the ^ General Counsel, the fact that an affidavit exists has absolutely no probative value.23 Even thereafter, knowledge of its existence is of value merely as a question preliminary to demanding disclosure of the statement itself and that, in turn, is used primarily as ,a means of attacking the credibility of the witness-obviously a form of defense but not one for which advance preparation is permitted under the law24'-• Even though interrogating an employee to determine whether a pretrial statement was given the Board does not, as my colleagues suggest, enjoy the protection of the privilege accorded to an employer 'respondent in the preparation of the defense, there remains the ques- tion of its coercive nature. In this respect the Board has held that the free exercise of employees' statutory rights includes the right to seek vindication thereof in Board proceedings free from coercion.21 Thus, interrogation and/or requests by an employer designed to as- certain the contents of a pretrial affidavit constitute interference with the exercise of rights guaranteed by Section V' It would appear from the record that Respondent did engage in such conduct 27 which, of course, is violative of the Act. However, even assuming, arguendo, that Respondent asked Enders only whether she had given any statements to the Board, I would reach the same conclusion. 22 In this connection, the Board has held that a respondent employer may not obtain the pretrial statement given the General Counsel by an employer witness in advance of his taking the stand , although the witness may review his own statement before testify- ing. Such affidavit of a respondent's witness may be made available to respondent's counsel only when and if the General Counsel has utilized information therein for pur- poses of cross-examination . See R. E. Edwards, d/b/a Edwards Trucking Company, 128 NLRB 385 , footnote 1. 2' See Sealtest Southern Dairies, 126 NLRB 1223. 2GBetter Monkey Grip Company, 115 NLRB 1170 , enfd . 243 F. 2d 836 ( C.A. 5), cert. denied 355 U.S. 864 : "Clearly inherent in employees ' statutory rights is the right to seek their vindication in Board proceedings." 28 Texas Industries, Inc., et al., 139 NLRB 365 ; Hilton Credit Corporation, 137 NLRB 56, 64. Also see Henry I. Siegel Co., Inc., 143 NLRB 386, where the' request for a copy of an affidavit was held a violation even though not complied with ; Suprenant Mfg. Co., 144 NLRB 507, where the inquiry accompanied by appropriate assurances was made as to whether the employee was under subpena and whether he had given the Board agent a statement , followed by the query whether he would be willing to tell what was in the statement ; Derby Coal & Oil Co., Inc., at al., 139 NLRB 1485, where the suggestion to the employee that he obtain a copy of his affidavit from the Board so that he and the employer could go over it together was regarded as of a nature which might reasonably dissuade employees from giving testimony for the Board. 27 Enders testified that after she admitted she had given the Board a statement the attorney asked if she had been given a copy of the statement. When she replied she had not the attorney stated, "Then you have no copy to know what you said over there," and she again answered, "No." Attorney Matheson testified he asked Enders if the Board agent, told her she was entitled to a copy of her statement and if the Board agent asked her whether she wanted •a copy, and that Enders replied "No " to both questions. 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has found that interrogating an employee as to whether he talked to the Board agent constitutes illegal interference engendering apprehension and has an inhibitory effect upon the exercise of Sec- tion 7 rights by employees.' In my view there is little or no differ- ence in coercive effect between asking whether an employee has given the Board an affidavit and inquiring whether he has talked to a Board agent. Both are obviously preliminary steps to ascertaining, if an affirmative answer is given, what the affidavit contains or what was said to the Board agent. If, as the Board has found, one such inquiry is violative of the Act, then perforce so is the other. ' Ac- cordingly, I would find that Respondent violated Section 8(a) (1) of the Act by asking Enders whether she had given any statements to the. Board. as Corpus Christi Grain Exchange, Inc., 132 NLRB 145, 160-165. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE In Case No. 7-CA-3937, upon a charge filed on October 12, 1962,1 by Richard J. Pisarski and in Case No. 7-CA-3958, upon a charge filed on October 19, by Local 164, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., herein called Local 164, the Regional Director for the Seventh Region issued a consolidated complaint on December 11, alleging the commission of unfair labor practices by Respondent in violation of Section 8(a)(1) of the National Labor Relations Act, herein called the Act, and affecting commerce within the meaning of Section 2(6) and (7) of the Act. The consolidated com- plaint was amended at the hearing to allege an additional violation of Section 8(a)(1). Respondent denies it has committed the alleged violations. The General Counsel, Local 164, and Respondent were represented by counsel, and all parties participated fully in the hearing before Trial Examiner W. Edwin Youngblood in Detroit, Michigan, on February 11 and 12. The General Counsel and Respondent filed briefs, which have been duly considered. Disposition of Respondent's motion to dismiss the complaint, as amended, is made by the following findings, conclusions, and recommendations. Upon the entire record and from my observation of the witnesses, including their demeanor while testifying, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, an Illinois corporation with its principal office in Chicago, Illinois, is engaged in the retail sale and distribution of hard and soft goods and related products. Respondent maintains stores throughout the United States including stores at Adrian and Mount Clemens, Michigan, the only stores involved herein. During the fiscal year ending February 1, a representative period, Respondent sold and distributed products valued in excess of $5 million. During the same period, Respondent shipped products valued in excess of $1 million across State lines, including goods valued in excess of $500,000 which were shipped to its stores in Michigan directly from other States. Respondent admits, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. IT. THE LABOR ORGANIZATIONS INVOLVED I find that Local 164 and Local 243, International Brotherhood of Teamsters, -Chauffeurs, Warehousemen and Helpers of America, Ind., herein called Local 243, are labor organizations within the meaning of Section 2(5) of the Act. ' Unless otherwise noted all dates mentioned are in 1962. MONTGOMERY WARD & CO., INCORPORATED 89 M. THE UNFAIR LABOR PRACTICE A. Interrogation and threats at Mount Clemens 1. The testimony of Pisarski and Bobcean In mid-March employees at the Mount Clemens store became interested in Local 243 and Kenneth Bobcean, who worked in the shipping and receiving depart- ment under the supervision of Edward Shankin, obtained Local 243 cards and distributed them to other employees. He was assisted in the distribution of cards by Richard J. Pisarski, who worked on the dock under the supervision of Shankin.2 On April 24, a representation hearing was conducted during which Bobcean. and Pisarski testified as witnesses pursuant to the request of Frank Meyers, business agent for Local 243. About 3 days after the hearing, Shankin approached Pisarski in the furniture department and asked him why he appeared as a witness for Local 243. Pisarski replied that he did so because Local 243 needed two witnesses. Shankin then told Pisarski that "it was too bad that [he] went." About 21/2 weeks after the representation hearing, Bobcean was working in the west end of the second floor stockroom. He had a Teamsters Union contract book in his left-hand shirt pocket which extended out of his pocket about 11/2 inches. Shankin approached Bobcean and told him that he should take the book out of his pocket or he would be subject to discharge, adding that this was what he had been told by Mr. Hornette.3 Bobcean had passed Hornette a number of times with the union book in his pocket. Bobcean did not recall anyone else being present during this conversation. About 31/2 weeks after the representation hearing, Bobcean, while working on the second floor of the stockroom, had a conversation with Shankin about a shift change. During this conversation, Shankin told Bobcean that "the Company was after [him] for trying to organize a union at this store." About the end of June, Pisarski approached Shankin in the furniture department and told him that he needed some skids to unload a truck. Shankin replied that no ,skids were available. Pisarski said that without skids he could not unload the truck. Shankin told Pisarski that he should do his best and not complain because the "front office is trying to get rid of [yoio as it is" on account of the Union. Early in July, on the dock, P•isarski told Shankin that he was unable to unload a truck because of the absence of working room. Again Shankin advised Pisarski not to complain but to just do the best he could because the "front office" wanted to "get rid of [him] on account of that Union." About the third week in July, Pisarski was having coffee in the coffeeshop when Shankin walked up to his table and started "bawling" him out for not taking the mail off the "shuttle for Allen Park." Pisarski stated that he was going to unload the truck. Shankin told Pisarski that he was not doing his work, an argument then ensued, and after it ended Pisarski talked with Arthur Fall, who is operating man- ager of this store and whose responsibilities include the shipping and receiving department. Pisarski told Fall that he was tired of working under conditions where Shankin threatened him about the Union and not doing his job. Fall replied that he would talk with Shankin and "get it straightened out." Later that day, Shankin called Pisarski into his office and told him that he had talked with Fall. Shankin said that he told Fall that Pisarski had been pretty "snotty" and should be repri- manded, but Fall had not agreed to do so. Then Shankin said "that's the way [you] show .[your] appreciation to [me] after [I keep] saving [your] job because the front office wants to get rid of [you]" because of the Union. 2. The testimony of Shankin, Fall, and Trandell Shankin denied that he asked Pisarski why he testified at the representation hearing and denied that he ever even discussed the representation hearing with Pisarski. Also Shankin denied telling Pisarski that the front office was trying to get rid of him because of the Union. Fall testified that he was transferred to the Mount Clemens store on June 14 and that Shankin was directly responsible to him z Shankin is no longer employed by Respondent but during times material to the issues herein occupied the position of shipping and receiving manager. Shankin was admittedly a supervisor as defined in the Act. - 8 Hornette was at that time operating manager of the Mount Clemens store and Shankin's supervisor. 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the operations of the shipping and receiving department . Fall, although ad- mitting that he talked with Pisarski in the latter part of July, denied that the word "union" was mentioned in that conversation . In fact, Fall denied even hearing of any union activity at the store until about November 17. Shankin testified that in May he sawa union contract in Bobcean's possession. Further that he saw Bobcean pull it out of his pocket when employee Ronald Trandell was standing near Bobcean.4 According to Shankin, Bobcean laughed and showed him the book and said that these are the wages "we're going to be getting from now on." Shankin at first testified that he "didn 't say a word" to Bobcean , then testified that he said, "Well, that's nice." Shankin denied he told Bobcean that carrying the union book could subject him to discharge . Shankin also denied telling Bobcean that the "front office" was after him for trying to organize a union. Trandell testified that in May he saw Bobcean working in the second floor stock- room with a union contract book in his pocket . Shankin got off an elevator, and Bobcean pulled out the book and said, "Look what I got here." 5 Bobcean opened the book and gave Shankin the wage rates that "everybody would make." Trandell at first testified that Shankin said nothing to Bobcean, then testified Shankin said, "You better put that book away." 6 3. Credibility resolutions It is apparent from the foregoing that ,the testimony of the witnesses of the Gen- eral Counsel is squarely contradicted by the testimony of witnesses for Respondent. In its brief, Respondent asserts Pisarski and Bobcean gave inconsistent and con- tradictory testimony and should be discredited . I have carefully compared Pisarski and Bobcean's testimony with their Board affidavits, and in addition Pisarski's testimony with that given in a State unemployment compensation commission hear- ing. In these comparisons , I have found no material conflicts . In fact, Pisarski's and Bobcean's testimony is generally consistent with their affidavits , and in Pisarski's case, consistent also with his testimony at the unemployment compensation com- mission hearing.? Moreover, it is not without significance that Stanley Carpenter, a witness called by Respondent, testified that Pisarski told him of Shankin's state- ment to him to the effect that he (Pisarski) was in trouble with the "front office" because of the Union . I do not regard Bobcean's denial that he discussed his testimony with Pisarski as inherently incredible . Also, I accept Pisarski's explana- tion of the circumstances surrounding the execution of his Board affidavit. On the other hand , the testimony of Shankin and Trandell is inconsistent with respect to Shankin's statement to Bobcean about the union book. It is significant that while Shankin testified he said to Bobcean, "Well, that's nice," Trandell testi- fied Shankin said to Bobcean , "You better put that book away." Moreover, I believe Shankin was less than candid in his testimony about the circumstances sur- rounding the request for a copy of his Board affidavit. On the entire record and the demeanor of the respective witnesses, I consider Pisarski and Bobcean's testimony to be more reliable than that of Shankin.8 Ac- cordingly, I credit Pisarski's and Bobcean's testimony and reject the contradictory testimony of Shankin.9 Therefore, I find that Respondent violated Section 8 (a)( I) 4 Trandell became shipping and receiving manager after Shankin left the employ of Respondent. 5 Trandell testified Bobcean also showed him the book but he did not recall whether this was before or after Bobcean showed it to Shankin. e I do not regard Trandell 's testimony with respect to a company rule prohibiting union activity on worktime as sufficiently reliable to make a finding thereon. 7 For example , in its brief, Respondent asserts that on page 150 of the transcript, Pisarski's testimony reflects that after he talked with Fall , he talked with Shankin on the dock . Respondent further asserts that Pisarski's affidavit on page 5 reflects this conversa- tion occurred not on the dock, but in the furniture department . Page 150 of the .tran- script reflects Pisarski's testimony that after he talked with Fall, Shankin called him upstairs to his office. Page 5 of Pisarski 's affidavit does not refer to this conversation, but an earlier conversation . Page 6 of Pisarski's affidavit does relate to this conversation and reflects that after Pisarski talked with Fall, Shankin called Pisarski upstairs. 8 I reject . Fall's denial that the Union was even mentioned in his conversation with Pisarski . I regard Fall 's testimony that he, the operating manager of the store since June 14, did not even hear of the employees ' union activities until about November 17, as implausible. e In making this finding, I have at the request of Respondent taken official notice that the Regional Director on May 15 found inappropriate the unit petitioned for in Case No. 7-RC-5253 and dismissed the petition. MONTGOMERY WARD & CO., INCORPORATED 91 of the Act by Shankin's interrogation of Pisarski under the circumstances, detailed herein and his threats to Pisarski and Bobcean concerning their union activities, including his threat to Bobcean of discharge for displaying a union contract book in his pocket.10 In making these findings, I have considered and rejected Respondent's conten- tion made at the hearing that the statements of Shankin were "cured" or "effectively withdrawn" by Schunk's speech. Schunk, Mount Clemens store manager, in a speech in June to a group of employees which included Pisarski, stated that Re- spondent would not hold any "grudges" because of the efforts of employees to obtain union representation and that they had the "right" to join the Union or not to join "as they saw fit." There is no evidence that Schunk in his speech referred to Shankin's interrogation or threats; in fact, Respondent denies that Shankin en- gaged in the conduct in question. In these circumstances, Schunk's speech cannot reasonably be held to have dispelled or "cured" the coercive effects of Shankin's conduct.il B. The alleged threat to Enders The complaint alleges Respondent threatened to discharge employees at its Adrian store if they assisted Local 164 in processing grievances by furnishing evidence to Local 164 in support of or in connection with grievances. On or about August 24, an employee in the Adrian store named Andrew Ward was laid off by Respondent. Ward, who was employed in the service department as appliance serviceman, filed a grievance with Leo Seegert, business agent for Local 164.12 Apparently Respondent had transferred another man into Ward's depart- ment and thereafter laid Ward off because there was insufficient work for two men. In connection with his investigation of the grievance and in the latter part of September, Seegert talked with Mary Enders, who is service clerk in the service. department at the Adrian store and is in the bargaining unit represented by Local, 164.13 Seegert advised Enders that Ward had signed a grievance and that he was trying to determine if there was enough work for Ward. Seegert then asked Enders how much work was pending and if there was work enough for two men. Enders reviewed the work orders and told Seegert that there were "quite a few" pending work orders, "more than one man could take care of." She did not, however, tell him the exact number.14 Following his conversation with Enders, Seegert talked with Store Manager Goudy about the Ward grievance. Apparently Seegert was unsuccessful in ad- justing the grievance with Goudy and on the morning of October 6 discussed the grievance further with James G. Smith, Respondent's district manager.15 Seegert advised Smith that he had talked with Enders who told him there were "quite a few" pending work orders, and he felt there was enough work for two men.16 After lunch, Seegert and Smith met in the service department and again discussed the Ward grievance. Smith reviewed the work orders with Seegert and showed him at least some of these orders.17 Smith called Enders in and asked her if she had told Seegert about pending work orders. Enders replied that she had. Smith then told her in doing so "it put [her] on the spot." Enders stated that she thought when the union representative questioned her about anything "like that" she was supposed to tell him. Smith stated that she was not to give out any information about work 10Cf. Mayrath Company, 132 NLRB 1628. 11 Cf. Haynes Stellite Company, 136 NLRB 95, 97. 12 Local 164 and Respondent have a collective-bargaining agreement which contains a grievance procedure and is in evidence as General Counsel's Exhibit No. 2. 18 Part of Enders' duties include making out and scheduling work orders and she is responsible for maintaining these records. 14 Based on a composite of the credited and mutually corroborative testimony of Seegert and Enders. 1c Smith is admittedly a supervisor as defined in the Act. 10 Based on Seegert's credited testimony , I' reject Smith's testimony insofar as it in- dicates Seegert told him the exact numbers of work orders or orders "farmed out." Smith's testimony on this point was contradictory. For example, he testified on cross- examination, "I forget whether he [Seegert] told me there was 10 of this or 15 of this." Moreover, as found above, Enders credibly testified she did not give exact numbers to Seegert. Since Enders did not give exact numbers of orders to Seegert, I do not believe he gave exact numbers to Smith. ' 11 Based on the credited and virtually undisputed testimony of Seegert. 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD orders to anyone and she was "on the spot" if she did. Enders then stated that as long as she knew and understood "why, that's it." 18 . Information as to work orders was not available to the general public, Re- spondent's competitors, or even to employees outside the appliance service de- partment. Although some work orders could be seen by the general public on the bulletin board, the amount and number could not be ascertained by observation.19 It is clear that Respondent instructed Enders not to give information regarding work orders to the union representative or anyone else and warned her she would be "on the spot" if she did so.. Thus Respondent threatened her with disciplinary action if she assisted Local 164 by furnishing information about work orders. Accordingly, I reject Respondent's contention that it did not threaten her on October 6, but this does not dispose, of the matter for if Respondent's instruction to Enders was lawful so also was its threat to implement the instruction. The issue, therefore, in my opinion, is whether the instruction was lawful. General Counsel contends that Enders has a protected right under the Act to assist the Union in processing grievances by supplying information from company records, and there- fore Respondent, by its instruction to Enders and the attendant threat, violated the Act. General Counsel cites no cases in support of this point in his brief and I am not aware of any. Respondent points to the fact that ,the records and their contents are its property and are not available to the general public. Clearly disclosure of the status of pending work orders to the public or potential customers could be detrimental to Respondent's interest because potential customers might take their business elsewhere. Respondent cites Clearwater Finishing Company, 100 NLRB 1473, in support of its contention that it has the right to restrict disclosure by its clerk of the contents of its records. In that case, the Board held that the discharge of a clerk, who had custody of the employer's records and disclosed information from those records to an employee who was a union official, was lawful. The Board stated that "it was clearly inconsistent with the performance of his duties for [the clerk] to disclose such records" to the union. The Board further stated that Re- spondent "was entitled to have such a position occupied by an employee in whose discretion it had implicit confidence." General Counsel attempts to distinguish Clearwater because the Board in that case referred to the fact that neither Re- spondent nor its clerk knew why the union official wanted the information. How- ever, in Clearwater the Board found that Respondent did know prior, to the dis- charge of the employee who was a union official why he wanted the information. In considering the lawfulness of this discharge, the Board stated that they were not persuaded that Respondent regarded the information as confidential or that it had any business reasons for objecting to its disclosure. I am persuaded that in the instant case Respondent regarded these records as confidential and had sound business rea- sons for objecting to disclosure of information from these records. In these cir- cumstances, I am of the opinion that Respondent has the right under the Act to re- strict disclosure by its clerk of information from records in her charge. It would be a much closer question if Local 164 could not obtain this information in any other way. However, it seems clear that Local 164 could lawfully obtain this information from Respondent in other ways.'° Indeed, Respondent voluntarily showed at least some of the records to Seegert. Accordingly, I find Respondent did not violate the Act by its instruction to Enders or- the attendant threat. .1 shall recommend dismissal of this allegation. Is Based on the credited testimony of Enders. Smith's version is substantially in accord with that of Enders, except in one respect. Smith, while not specifically denying that he told Enders she would be on the spot if she gave such information in the future to Seegert, testified in effect that his "on the spot" remark was made in the following circumstances. He learned from Goudy that morning that someone had given Seegert information with respect to work orders. He then asked Enders if she knew of any "information leaks" and she stated she did not. Therefore, when he learned from Seegert later that morning that he had gotten the information from Enders, he prefaced his inquiry of her by stating she was "on the spot" because she had denied knowledge of an information leak that morning. Clearly and indisputedly, Smith instructed Enders not to give such information to Seegert in the future. It is entirely consistent with such an instruction for him to tell her she would be "on the spot" if she gave out such information in the future. Likewise, it is consistent with these facts for him to have told her she was "on the spot" because she had already given such information to Seegert. Moreover, Enders impressed me as an honest and truthful witness, therefore, I credit her testimony, and reject Smith's contrary testimony. ^e Based on the credited testimony of Enders. See Sinclair Refining Company, 132 NLRB 1660. MONTGOMERY WARD & CO., INCORPORATED 93 C. The alleged illegal interrogation of Enders At.the hearing, General Counsel amended his complaint to allege in substance that. Respondent, by its agents W. Yale Matheson, James Smith, and John Goudy, interrogated Enders concerning her union or other concerted activities. On February 7, 1963, Store Manager Goudy asked Enders to "come with him for a few minutes." When she inquired if he meant to go to "the store," he replied, "Put your coat on." Goudy did not tell Enders where they were going or why. They went to a hotel where Smith and Attorney Matheson were waiting and all four then proceeded to a conference room in the hotel.21 Matheson advised Enders that he was investigating a "legal matter pending against the Company" and that his question would be directed to her conversation with Smith. Matheson also advised Enders that whether she was for or against the Union was "her own choice" and that his questions had nothing to do with that. Matheson asked Enders a number of questions principally with respect to her conversation with Smith about the work orders. Matheson also asked Enders if she had given any written statements to the Board. At the conclusion of the interview, Matheson took a, statement from Enders which, pursuant to his request, she signed before a notary public after making some corrections.22 General Counsel contends that Matheson's questioning of Enders as to whether she had given any statements to the Board goes beyond the issues raised by the com- plaint and implies surveillance of her union activities. The Board has long held that an employer is privileged to interview employees for the purpose of discover- ing facts within the issues raised by complaint where the employer or his attorney does not extend his interrogation to pry into matters of union activity.23 In my opinion, Matheson's mere inquiry if Enders had made a statement to the Board does not fall within the proscription of this rule 24 Nor do I find that this inquiry about a Board affidavit implied surveillance of Enders' union activities.25 General Counsel contends further that the manner in which the interview was con- ducted was coercive because Enders was ordered to 'accompany her supervisor to the conference room where she was questioned in the presence of .the supervisor and District Manager Smith. In addition, she was not told she was free to refuse to answer the questions, sign the statement, or leave. In N. & W. Overall Com- pany, Inc., 51 NLRB 1016, the Board declined to find a violation in a situation where employees were called into the office of the president of the company and questioned by the employer's attorneys in the presence of the president and var- ious other supervisors. Similarly, I find no violation here. I am persuaded on this record that Matheson interviewed Enders in a sincere and genuine effort to discover facts within the limits of the issues raised by the complaint in order to prepare for trial, and did not exceed the bounds of permissible inquiry within the rule of the cases cited above. Accordingly, I shall recommend dismissal of this allegation. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities found to be unfair labor practices in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 21 Matheson credibly testified there was no suitable place to conduct the Interview at Respondent's store. 22 The foregoing is based on the credited and undisputed testimony of Enders. At the hearing, Respondent offered the statement taken by Matheson as affirmative evidence of the events of February 7, 1963. I rejected the exhibit and pursuant to Respondent's re- quest In Its brief, have reconsidered the matter. I adhere to the ruling made at the hearing. 23 May Department Stores Company, 70 NLRB 94, 95, enfd. 162 F. 2d 247 (C.A. 8), cert. denied 332 U.S. 808; Joy Silk Mills, 85 NLRB 1263, enfd. 185 F. 2d 732 (C.A.D.C.), cert. denied 341 U.S. 914. 24 Cf. Atlantic & Pacific Tea Company, 138 NLRB 325, where the Board declined to had a violation in a situation where the employer requested an employee to obtain a copy of his Board affidavit so that it could be transmitted to the employer's attorney. 23 Select Foods, Inc., 133 NLRB 73, 77, cited by General Counsel In support of this point is distinguishable on its facts from the present case. In that case, an 8(a) (1) violation was found In a situation when a supervisor showed a 'list of union adherents to an employee. 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY In view of my finding that Respondent has interfered with , restrained, and coerced employees at its Mount Clemens , Michigan, store in the exercise of their rights under the Act, I shall recommend that it cease and desist therefrom and post an appropriate notice. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 164 and Local 243, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., are labor organizations within the meaning of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 4. Respondent has not, as alleged in the amended complaint, violated the Act by (a) threatening to discharge Enders if she assisted the processing of grievances by furnishing information to Local 164; or (b) its interrogation of Enders. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that Respondent Montgomery Ward & Co., Incorporated, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning their testifying in Board proceedings in a manner constituting interference, restraint, or coercion in violation of Section 8(a)(1) of the Act. (b) Threatening its employees with discharge or other reprisals because of their union or concerted activities. (c) Threatening its employees with discharge for displaying union contract books in their pockets. (d) In any like or related manner interfering with , restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organiza- tions, to join or assist Local 243, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., or any other labor organization, to bargain collectively -through representatives of their own choosing, and to engage in collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization -as authorized by the- Na- tional Labor Relations Act. 2. Take the following affirmative action designed to effectuate the policies of. the Act: (a) Post at its store at Mount Clemens, Michigan, copies of the attached notice marked "Appendix." 26 Copies of said notice, to be furnished. by the Regional Director for the Seventh Region, shall, after being signed by Respondent's representa- tive, be posted by it immediately upon receipt thereof and maintained by it for a period of 60 consecutive days thereafter in conspicuous places, including all places were notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Seventh Region, in writing, within 20 days from the date of receipt of this Intermediate Report and Recommended Order, what steps Respondent has taken to comply herewith.27 I further recommend the dismissal of subparagraphs (c) and (d) of paragraph 8 of the amended consolidated complaint. ° If this Recommended Order is adopted by the Board , the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice . In the further event that the Board's Order is enforced by a decree of a United States 'Court of Appeals, the words "A Decree of the United States 'Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order." 27 If this Recommended Order is adopted by the Board , this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." PROGRAM PUBLISHING CO. 95 APPENDIX NOTICE To ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that: WE WILL NOT interrogate our employees concerning their testifying in Board proceedings in a manner constituting interference, restraint, or coercion in violation of Section 8 (a)(1) of the Act. WE WILL NOT threaten our employees with discharge or other reprisals because of their union or concerted activities. WE WILL NOT threaten our employees with discharge for displaying union contract books in their pockets. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Local 243, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Ind., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as authorized by the National Labor Relations Act. MONTGOMERY WARD & CO., INCORPORATED, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 500 Book Building, 1249 Washington Boulevard, Detroit 26, Michigan, Telephone No. 963-9330, if they have any questions concerning this notice or compliance with its provisions. Arthur Klar, d/b/a Program Publishing Co.; National Pub- lishers, Inc. and Anthony Fasanaro Local H-63, Motion Picture Home Office Employees, Stage Em- ployees and Moving Picture Machine Operators, AFL-CIO and Anthony Fasanaro. Cases Nos. 2-CA-9427 and 2-CB-3779. February 25, 1964 DECISION AND ORDER On November 4, 1963, Trial Examiner Robert E. Mullin issued his Decision in the above-entitled proceeding, finding that the Respond- ents had engaged in and were engaging in certain unfair labor prac- tices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent Union filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Mem- bers Leedom and Brown]. 146 NLRB No. 12. 744-670-65-vol. 146-8