Montgomery Ward and Co., Inc.

MONTGOMERY WARD AND CO., INCORPORATED 1197 Montgomery Ward and Co., Incorporated and Retail Clerks In- ternational Association, AFL-CIO. Case No. 13-CA-5743. September 15,1965 DECISION AND ORDER On August 31, 1964, Trial Examiner Thomas A. Ricci issued his Decision 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 attached Trial Examiner's Deci- sion. Thereafter, the Respondent and the General Counsel filed excep- tions to the Trial Examiner's Decision together with supporting briefs. Thereafter, the General Counsel filed a reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. 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 this case, including the Trial Examiner's Decision, the excep- tions, and the briefs,' and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the modifications noted below .2 As more fully detailed in the Trial Examiner's Decision, Respond- ent and the Union arrived at a national agreement in August 1963. This national agreement was submitted for ratification to employees at different stores, but not at the store locations in which decertification petitions, inspired and fostered by Respondent, had been filed. As found by the Trial Examiner with respect to the locations where the contract was submitted to a ratification vote: Wherever the ratification votes were favorable, most of them towards the end of August, [1963] the substantive terms of the new agreement were put in effect immediately, although the con- tract itself was not signed until later. In those situations where the existing contract did not expire until later, the economic 'As the record, including the exceptions and briefs, adequately sets forth the issues and positions of the parties , Respondent's request for oral argument is hereby denied. 2 We find Respondent 's layoff of employees for refusing to answer questions pertaining to statements to Board agents or to unfair labor practice charges against Respondent to be violative of Section 8(a) (1) of the Act but we need not pass upon the Trial Examiner's additional finding that such conduct was also violative of Section 8(a) (4). Louisiana Manufactunnq Company, 152 'NLRB 1301, footnote 5. We also find that employees were unlawfully polled at Topeka as well as at the stores found by the Trial Examiner. Also, as maintained by the General Counsel in his exceptions, more than 50 percent of those at LaGrange were dues paying members of the Union at the critical time, 154 NLRB No. 100. 1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terms-i.e. those not related to union security-were also given, then and there, and the remaining provisions put in effect when the replacement contract was executed. At the stores where decertification petitions had been filed, the Re- spondent unlawfully polled the employees at most of those stores during the latter part of August as to whether they wished to be represented by the Local which was their bargaining agent. Where the employees voted against the Union, the employees were rewarded with the benefits of the national agreement effective as of September 1, 1963. The Trial Examiner recommended, inter alia, that Respondent be ordered to bargain collectively with the local unions representing the employees at the locations listed in Appendix A of the Trial Exam- iner's Decision; at virtually all these locations, Respondent's refusal to bargain followed the filing of decertification petitions. The Trial Examiner proposed further that the economic benefits of the national agreement which Respondent instituted at the stores where the employ- ees voted against the Union in its unlawful polling of employees be placed in effect at the stores where the employees voted for the Union, effective as of the same date when the former group received them, namely, September 1, 1963.3 The General Counsel and the Union contend that the Trial Exam- iner's Recommended Order does not adequately remedy the unfair labor practices found herein. They maintain that the Respondent should be ordered to submit the national contract agreed to in August 1963 to the employees at the locations listed in Appendix A of the Trial Examiner's Decision and, where ratified, that Respondent be directed to execute the contract. In addition, it is argued, Respondent should be ordered to make the benefits of the national agreement available at all locations where Respondent unlawfully refused to bargain,-' retro- active to June 1, 1963, which is when the benefits were given to the employees represented by the Teamsters whose new contract with Respondent became effective and to the employees at nonunion stores. We agree that some revision of the Trial Examiner's Recommended Order is appropriate in the circumstances of this case. Clearly, but for the unlawfully instigated and assisted decertification petitions, all the stores represented by the Union would have had the oportunity to ratify the national agreement. Respondent's refusal to extend that opportunity to the employees where decertification petitions had been 3A provision to this effect was inadvertently omitted from the Trial Examiner's Recommended Order. As appears hereinafter, other provision is being made for these locations ' The stores are listed in Appendixes A and B of the Trial Examiner 's Decision. MONTGOMERY WARD AND CO., INCORPORATED 1199 filed was an integral part of its unlawful efforts to undermine the Union. Plainly, Respondent was thereby seeking to convey to the substantial number of employees involved that it alone was respon- sible for the contractual benefits and that the Union was an obstacle to their attainment. A mere bargaining order would hardly remedy the effects of Respondent's unlawful conduct here. With respect to the Punxsutawney, lft. Vernon, Chico, and DuBois locations, where the employees voted to ratify the national agreement but where the Respondent refused to execute a contract following the filing of de- certification petitions, the Trial Examiner was of the view, as are we, that "effective remedial action requires that the contract be executed, else once again the illegal objective of depriving the Union of any credit in the eyes of the employees for benefits regularly negotiated in collective bargaining will have been successfully accomplished." 5 Precisely the same consideration requires that the national agreement be submitted for approval to the employees at the locations listed in Appendix A and Appendix B ° who were denied the opportunity to vote on this matter because of pending decertification petitions, and whose Local did not subsequently execute a contract. Where ratifica- tion is voted, Respondent shall forthwith execute the national agree- ment. We shall so provide. And in the circumstances recited above, we also deem it necessary to undo the coercive effects of Respondent's antiunion activities to order that, where ratification is voted, or where contracts at the aforementioned locations have been executed without retroactive application,? Respondent institute the improved conditions of employment called for by the national agreement retroactively to September 1, 1963.8 F We find merit in the General Counsel 's exception that at Alamosa , Colorado, as at the named four stores, the employees voted to ratify the national agreement but the Respond- ent thereafter refused to execute the contract because of the filing of a decertification petition In the circumstances, we shall also require Respondent to execute the national agreement at Alamosa o Regarding the stores listed in Appendix B, except for Punxsutawney , Mt. Vernon, Chico, and DuBois, the General Counsel requested no affirmative bargaining at those locations and none was entered by the Trial Examiner . However, the General Counsel has requested the retroactive granting of benefits to all locations and we believe that no distinction should be made between the stores insofar as our modification of the Trial Examiner's Recommended Order is concerned. For example , no warrant appears for any different treatment of Modesto and Woodland in Appendix B. V At San Luis Obispo, Maryville, Muskegon, and Butler , where the employees expressed approval of the Union in Respondent's unlawful polling of them, contracts were later executed but, as found by the Trial Examiner, "all the advantages, including both the company benefits spoken of in May and the terms negotiated with the International, are being withheld to this day." 8 We shall also require that the benefits of the national agreement be placed in effect at Alamosa upon the signing of the national agreement effective as of the date they would have been instituted but for the filing of the decertification petition there . See footnote 5, supra At Punxsutawney , Mt. Vernon, Chico, and DuBois, where Respondent also refused to execute the national agreement ratified by the employees because decertification peti- tions were filed, the benefits were granted the employees. 1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and orders that the Respondent, Montgomery Ward and Co., Incorporated, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified : 1. Add the following as paragraph 2(b) to the Trial Examiner's Recommended Order, the present paragraph 2(b) and those subse- quent thereto being consecutively relettered : "(b) Submit the national agreement, reached in August 1963, to the employees for ratification and, in stores where such agreement is ratified, execute forthwith the national agreement, and institute the benefits of the national agreement retroactive to September 1, 1963, under the conditions and in the manner set forth in the Decision above." 2. Delete the name of the Alamosa store from Appendix A and add the following as paragraph 2(d) to the Trial Examiner's Recom- mended Order, the present paragraph 2 (d) and those subsequent thereto being consecutively relettered : "(d) If requested to do so by Local 7 at Alamosa, sign forthwith the full contract, agreed upon in August 1963, between the Retail Clerks International Association, AFL-CIO, and the Respondent and ratified by the Local, and deliver two copies thereof for each bargain- ing unit to the Local. Also, institute the benefits of the national agree- ment retroactively as provided for in the Decision above. "If no such request is made, then, upon request, bargain collectively with Local 7 as the exclusive representative of the employees in the appropriate unit at Alamosa, and embody any understanding reached in a signed agreement." 3. Insert the name of the Alamosa store after "Mt. Vernon (Illi- nois)" in paragraph 2(e) of the Trial Examiner's Recommended Order. 4. Add the following sentence to the first indented paragraph of Appendix D of the Trial Examiner's Decision : Upon execution of the contract at Alamosa, we will institute the benefits of that agreement retroactively as provided for in the Board's Decision. 5. Footnote 1 of Appendix D is amended to read as follows : The Regional Director will insert at this place in the notice the appropriate local union designation; i.e., Local 876, 1179, or 7. MONTGOMERY WARD AND CO., INCORPORATED 1201 6. Insert after the first substantive paragraph of Appendix C 9 and Appendix E of the Trial Examiner's Decision the following paragraph: WE WILL submit to local unions representing employees of stores for which we refused to bargain upon the filing of decertification petitions, for ratification, the national agreement of August 1963, and upon ratification, forthwith execute such national agreement, and institute the benefits of the national agreement retroactive to September 1, 1963, under the conditions and in the manner set forth in the Board's Decision. o The telephone number for Region 13, appearing at the bottom of the Appendix at- tached to the Trial Examiner's Decision, is amended to read: Telephone No. 828-7597. TABLE OF CONTENTS OF A TRIAL EXAMINER'S DECISION Page Statement of the Case ----------------------------------------------- 1201 1. The business of the Respondent-----------------------.---------- 1202 II. The labor organization involved-----------------------.---------- 1202 III. The unfair labor practices------------------------------------- 1202 The Refusal to Bargain---------------------------------------- 1202 A. The principal issue---------------------------------------- 1202 B. Appropriate units and majority status------------------------- 1203 C, Evidence relating to the main issue ---------------------------- 1204 D. Analysis, subsidiary related facts, and conclusion---------------- 1238 N. The effect of the unfair labor practices upon commerce---.---------- 1262 V. The remedy-------------------------------------------------- 1262 Conclusions of Law------------------------------------------------- 1266 RECOMMENDED ORDER----------------------------------------- 1267 Appendix A------------------------------------------------------- 1268 Appendix B------------------------------------------------------- 1268 Appendix C------------------------------------------------------- 1269 Appendix D------------------------------------------------------- 1270 Appendix E------------------------------------------------------- 1271 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding started on July 12, 1963, when the Retail Clerks International Association,' herein called the International, or the Union, filed its original charge with the Board's Regional Office in Chicago, Illinois, against Montgomery Ward and Co., Inc., herein called the Respondent or the Company. This charge was filed by the International on behalf of its Local 300. Thereafter the International filed a number of amended and supplemental charges, each on behalf of various of its desig- nated locals, in a number of locations throughout the country and with diverse regional offices of the Board. A hearing upon the complaint before Trial Examiner Thomas A. Ricci opened at Chicago, Illinois, on October 28, 1963, on a compre- hensive amended complaint issued by the Chicago Regional Director on October 14, 1963, and upon answer filed by the Respondent. For the convenience of witnesses and of the parties, the hearing proceeded for a number of months at successive locations and closed on May 20, 1964, after testimony and exhibits had been received during 59 hearing sessions in 30 cities. The basic issue litigated is whether the Respondent violated Section 8(a)(5) of the Act. In the course of the extended hearing there were a number of amendments to the complaint, most of them concerned with conduct of the Respondent's agents and 1 At a number of locations to which the hearing progressed additional lawyers from time to time entered appearances and participated ; also at times officials of locals of the International Union noted their appearances. 206-446-66-vol. 154-77 1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representatives occurring after July 1963, and alleging further violations of Section 8(a)(5), and, in addition, separate violations of Section 8(a)(1), (3), and (4) of the Act. After the close of the hearing briefs were received from the General Counsel and from the Respondent. Upon the entire record, and from my observation of the witnesses, I make the following findings: 1. THE BUSINESS OF THE RESPONDENT Montgomery Ward and Co., Inc., a corporation organized under the laws of Illinois, is engaged in the sale and distribution of merchandise throughout the United States and foreign countiies at over 800 retail stores and mail-order houses. Its principal office is at Chicago, Illinois. This proceeding directly involves 39 of its separate business locations. In the course of its business operations, during the year ending July 1963, the Company sold and distributed products valued in excess of $2 million, and received goods valued in excess of $50,000, at each of the separate locations involved, transported to such locations in interstate commerce directly from States of the United States other than the State in which each of these business places is located. I find that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The record shows and I find that Retail Clerks International Association, and each of its locals involved in this proceeding, are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Refusal to Bargain A. The principal issue The essential allegation of the complaint is that the Respondent illegally refused to bargain with the Union in 38 of its stores located in various parts of the country. In these, and others of its catalogue and retail stores, the Respondent had for some time recognized the Union, through a number of its locals, and in 1963 there were collective-bargaining agreements in effect in about 80 stores, virtually all due to expire on June 1 Both before and after that critical date, management and union representatives met, on national and regional bases, exchanged proposals and counter- proposals, and discussed their conflicting demands at considerable length. While these meetings were taking place, movements to unseat the Union developed in 37 stores, and there came a time when, in one way or another, the Company with- drew recognition from the respective local union involved and refused to continue bargaining. The complaint alleges that the widespread activities to decertify the Union were instigated by the Respondent, that they were encouraged and nourished by the Company in order to accomplish a preconceived plan to alter conditions of employment unilaterally, and that the Company advanced the ostensible question concerning renresentation seemingly raised by these disaffection petitions to lend a colorable justification to its outright refusals to bargain in the end. All of this, it is alleged, proves that the discussions that were simultaneously being carried on with the union agents constituted only a sham to cover an underlying and ulterior objective to avoid the basic duty to bargain with the majority representative in good faith as the statute requires There is no contention that the discussion sessions between union and company agents, including the written proposals exchanged, in themselves indicate evasion or deceit. It is conceded that on the surface these meetings comported with the require- ments of normal collective bargaining. The theory, rather, is that all of the conduct of the Respondent's officials, including these meetings and what went on locally at the widely dispersed store locations. and particularly the time elements tying together the more significant events, establish a pervasive bad faith in the Respondent's entire course of conduct, a purpose to bypass the chosen bargaining agent in its dealings, with the employees, and a deliberate refusal to accord the Union the truly representa- tive status which, under the scheme of Section 8(a) (5) of the Act, it was entitled to exercise. The answer denies any intent by the Respondent to avoid its obligation to deal with the majority representative of its employees wherever and whenever a union local enjoyed such exclusive agency. The Company disclaims all responsibility for the MONTGOMERY WARD AND CO., INCORPORATED 1203 antiunion activities of the employees and asserts that in each instance where it with- held recognition it was only after, and because of a real and substantial question raised by the employees themselves on whether or not the local union continued to command majority adherence Within this broad statement of the main issue presented for decision, the parties advanced more precise and detailed contentions that will be explained and considered below. B. Appropriate units and majority status The complaint is concerned with 39 separate stores, each with its own appropriate bargaining unit. The General Counsel asks for a finding that the refusal to bargain in violation of Section 8(a)(5) of the Act occurred in each of these locations except Baker, Oregon, where only a violation of Section 8 (a) (1) is alleged As in all cases alleging violations of this section of the Act, a necessary preliminary finding must establish the exact bargaining unit and the exclusive majority status of the Union at the time of the alleged refusal to bargain. At none of the locations involved was any issue raised respecting the correct com- position of the bargaining unit, in each instance it was clear that the General Counsel and the Respondent were in agreement as to what the appropriate unit was during May, June, and July, the critical period All the units were initially established as basic elements of Board-conducted elections and set out in resultant Board certifica- tions. At two of the stores-Richmond and Chico, both in California--the local unions were certified in 1962, and no contracts were ever signed. In each of the other 36 stores there were in effect during May 1963 regular collective-bargaining agreements, of which 32 were due to expire on June 1, and the other 4 at a later date: Sacramento, California, November 1, 1963; Salisbury, Maryland, January 8, 1964; Pueblo, Colorado, February 15, 1964, and Pittsburg, California, May 5, 1964. In the absence of any issues raised on this formal and technical aspect of the pro- ceedings, it would unduly burden this report to set out here verbatim for each of the 38 locations a description of the bargaining unit They are set out without chance of disagreement in the 36 contracts then in effect or in the certificates applicable to Rich- mond and Chico. It is accordingly found that the units described in the contracts applicable to the 36 stores and in the Richmond and Chico Board certificates consti- tute units appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act The fact of majority status, and the local Union's right to represent all of the employ- ees in each of these 38 bargaining units during the summer of 1963, is proved in sup- port of the complaint by virtue of the presumption of continuing majority which has long been recognized by Board law as arising from the existence of a proper collec- tive-bargaining agreement or a valid Board certification 2 In each instance where there was a contract in effect, the Respondent bargained with the Union before its expiration, largely during the months of April and May 1963. Moreover, it continued such recognition and bargaining even after most of the agreements had expired, and did not withdraw recognition until the month of July At no time during all that period did the Respondent question any local union's majority status It was only after decertification petitions had been filed in virtually every location that the Respondent raised any issue directed to the Union's right to speak on behalf of the employees. At a number of the locations, during the hearing, Respondent's counsel asserted that the particular local union in fact did not, at the time of the refusal to bargain, enjoy majority-iepresentative status. He said there was, or would be proof of this assertion sufficient to rebut the presumption of continued majority. This contention was repeated as an integral pait of an argument that in any case alleging a refusal to bargain, if it could be shown by the employer that a union in fact was not authorized by a majority of the employees, no finding of illegal refusal could be made, regardless of the employer's antiunion activities otherwise proscribed by the Act. Assuming, but not deciding the correctness of this position as a matter of law, there is presented the question whether there is sufficient probative evidence in this case to offset the presumption favorable to the complaint A seemingly separate and broader contention is also advanced in defense to the entire complaint. The Respondent contends that the refusals to bargain were grounded upon an honest and reasonable doubt as to the majority status in each instance, and in 2 Celanese Corporation of America, 95 NLRB 664; Servette, Inc., 133 NLRB 132, 136: We presume, in the absence of evidence to the contrary, that the Respondent's rec- ognition of the Union was Lawful, and, therefore, that the Union was the majority representative when recognized and during the term of the contract. 1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD support of that assertion it points to certain oral testimony, documents, and factual stipulations between the parties. In large measure the evidence said to support this second contention is the same testimony or documentary proof advanced as effectively rebutting the presumption of majority status during the critical period. The two argu- ments-no majority in fact and reasonable grounds for refusing-are so interwoven that intelligent appraisal of each apart from the other would be virtually impossible. Certainly, separate treatment of the two defenses articulated would compel extended repetition of many portions of the evidence and of the Respondent's arguments. More- over, appreciation of the character of the proof said to support these two arguments, and of the probative value of much of the oral testimony by both employees and man- agement representatives, can only be made with a due consideration of many other related facts appearing on the record and of the timing of the major events. The attack upon the majority status, to the extent that there is any probative evi- dence at all worthy of consideration, is limited to 17 different locations. I deem totally unsupported statements of opinion or conclusions as to a particular union's strength or employee sentiment, even though voiced from the witness stand, not worthy of consideration or discussion at this point. At none of the remaining 21 stores listed under the Section 8(a) (5) allegations of the complaint was any such evidence offered. Accordingly, it is hereby found that at each of the following locations the respective local set opposite the location, by virtue of Section 9(a) of the Act has been and is now the exclusive representative of all the employees in the previously indicated units for purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment: Local Local Butler____________________ 1407 Merced_______________________ 170 DuBois___________________ 1436 Sacramento ------------------- 588 Punxsutawney_____________ 1436 Anchorage____________________ 1496 Muskegon_________________ 807 Spokane______________________ 1439 Pueblo___________________ 24 Longview_____________________ 148 La Junta__________________ 7 Portland...................... 1257 Las Vegas________________ 1564 Pittsburg---------------------- 1179 Madera___________________ 170 San Jose______________________ 428 Modesto__________________ 588 Mt. Vernon------------------- 806 Woodland_________________ 588 Salisbury --------------------- 692 San Luis Obispo___________ 899 C. Evidence relating to the main issue Broadly classified, the facts which must be deemed pertinent to the basic question of whether the Respondent engaged in conduct prohibited by the statute fall into two distinct and separate areas One set of facts details the meetings and the discussions which took place between management and union, where proposals were made, argu- ments exchanged, some concessions offered, agreement reached as to some items, and finally recognition withdrawn as to a number of stores. The General Counsel offered some of this evidence because withdrawal of some stores from the bargaining was announced by the Company at certain meetings, and because it also reveals the dis- parate treatment of the Retail Clerks as against the Teamsters Union by the Respond- ent. The Respondent's witnesses related many details of these meetings, of the multitudinous proposals and counterproposals, even including arguments made by the participants for or against a great many contract modification demands. Its purpose was to prove that in fact it did bargain, and thereby refute the literal allegation that there was a "refusal" to bargain. There is a minimum of meaningful dispute over these meetings and discussions. The second area of factual evidence covers activities of the Respondent in the 39 stores in question, things that were said to employees, acts of management represent- atives relating to the decertification proceedings, and elections held by the Company. These activities, revealing management's direct contact and dealings with the employ- ees at the same time that it was ostensibly negotiating with their collective-bargaining agent, are the substance of the General Counsel's case in support of the complaint. This evidence again is of two kinds. One proves the conduct of management agents pursuant to direct instructions from the labor relations department in the main office, statements read to store employees by emissaries from Chicago, documents prepared in the main office for use in the many stores and distributed at the locations, and posted in those stores. As to all of this, there is no dispute, for the story was told by Richard Scheidt, labor relations director and chief counsel of the Respondent at the hearing. s At this location Local 1257 of the Retail Clerks was certified , and remained as bar- gaining agent, jointly with Local 255 of the Teamsters International Union. MONTGOMERY WARD AND CO., INCORPORATED 1205 He produced documents prepared by the Company and used in the stores to reach the employees directly, The remaining portion of the evidence said to support the complaint deals largely with the activities of local management representatives , such as store managers , assist- ant store managers, regional operations managers, regional personnel directors, etc. Unlike the activities expressly ordered from Chicago, and conceded by the Respond- ent, which were uniform throughout the stores, these local incidents varied from store to store. It was for this reason that the hearing of necessity extended to 30 cities. The proof in this area was elicited almost entirely from reluctant witnesses, including many store managers examined pursuant to section 43(b) of the Rules of Civil Pro- cedures, and decertification petitioners who were clearly hostile to the General Coun- sel. Much of the testimony was extracted from witnesses after confrontation with earlier sworn statements . In some instances this area of proof presents credibility issues. 1. Activities planned in the Respondent's central office and uniformly carried out in the stores In 1962 purely for economic reasons, the Company decided to make major changes in the insurance, retirement, and vacation benefits of its employees , and to institute a savings plan tied to the new retirement system and a stock-purchase program. This new structure of employee benefits is very complex and detailed, its application vary- ing with employee status, length of employment, and job classification. During the early period, when the Company was publicizing its intention and laying the founda- tion for a favorable reception of the program by its overall employee complement, the revised benefits came to be called "the three giant steps," or the new "company bene- fits." Precisely in what respects or to what extent the new benefits gave employees advantages not previously enjoyed, was not made clear on the record, and for pur- poses of understanding and appraising the questions to be decided here, there is no need to analyze them in every refinement . It does appear at least, among other things, that in some cases vacation privileges were extended, that employee contributions towards insurance costs were reduced, that insurance benefits were in some respects increased, and that over the years the employer would make contribution towards employee stock purchases. It is clear that, regardless of their exact value, the "com- pany benefits," as a whole, came to be viewed by the employees as an improvement in working conditions The Company's original plan was to place these benefits in effect in 1962, but it decided first to negotiate the matter with the Teamsters International Union, whose locals represented more employees than did the Retail Clerks. Negotiations with the Teamsters were delayed and it was not until April 9 that agreement on a new con- tract for all those stores was reached. After a certain amount of advance drumbeating about the planned innovations, the first steps were taken to advise the employees directly of the details of the new bene- fits. For this purpose the Company prepared a printed 40-page script to be read to the employees in each store, a number of slides to be shown by projector during each talk, and three printed booklets for individual distribution covering minute aspects of the "three giant steps." Regular training sessions were held to prepare the speakers-called conference leaders-for these presentations . In all instances high company representatives, such as regional merchandising directors, personnel directors, labor relations department men, always superior to the management hierarchy in any of the local stores, were used. They visited the stores on schedule; the talk, following the printed script, required about an hour and a quarter. In some stores it was given once, to all the employees assembled ; in others , the larger stores, the talk was given several times, on occasion as many as 15 times over a few days, with the employees called together in groups. The speeches were given in all of the nonunion stores and in all Teamsters loca- tions during April, and all of these employees were assured the benefits would become effective on June 1. On that day the renewed Teamsters contract took effect, and the benefits in fact were given in these and all nonunion stores. The Respondent's first approach to the Retail Clerks on this subject came early in 1963 when, through high union officials, it suggested early negotiation . Regular negotiations , or comprehensive discussion of contract proposals both ways , started in April, mostly for the west coast stores in that month , and continued in May in several cities, each for a regional group of Retail Clerks stores . By mid-May no agreement had been reached and the Respondent decided to present its benefit pro- gram directly to the employees represented by this union also. For the most part the same speakers were used, management representatives superior to store level super- visors. Also the same 40-page script was used as elsewhere . To adjust for the fact 1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that there was a collective -bargaining agent in these stores , a special supplement three-page script was prepared to be read by the speaker in advance of the regular exposition of the benefits. The additional statement was written by Scheidt, the labor relations director, on May 15. The purpose of this extension of the benefits speech was to inform the employees that while the benefits were definitely going to be placed in effect in the Teamsters and nonunion stores on June 1, here. because there was a union, the employees would not receive them until agreement had been reached with their bargaining agent. Two days before drafting this supplemental script for the Retail Clerks stores, Scheidt also wrote, or had prepared under his immediate supervision, a three-page document entitled "Decertification Elections," with a number of attachments. This document will hereafter be called the decertification brochure. One of the attach- ments was a copy of the decertification petition form used by the Board, with the name of the employer, type of establishment, principal product, and description of bargaining unit filled in. There was also attached a listing of each of the separate stores where the Retail Clerks was then being recognized, and a list setting out the name, office address, and the telephone number of the Board Regional Director for each region in which Retail Clerk stores were located. The decertification brochure itself set out in detail the procedural steps required for filing decertification petitions, language to be used at the top of signature petitions in support (2 complete phrases were suggested-1 of 11 words and another of 23 words), the percentage of employee signatures necessary, the need of a date following each signature. precise information as to the time when a petition could properly be filed with relation to the expiration date of any collective-bargaining agreement. This decertification brochure was put in the hands of each conference leader before he set out to give the benefits speech. The speech was given in all the Retail Clerks stores simultaneously throughout the Company between May 20 and 25. Most of the time it was in the store proper; on occasion the employees were gathered in a more convenient location nearby, such as a bank, a hall, or at a hotel breakfast. In every instance steps were taken to assure that all employees, including those not scheduled for work at the time, were in attendance. All employees were paid for time spent listening The speaker started each talk by reading the special script prepared by Labor Rela- tions Director Scheidt It reads as follows: My name is ------------------------ and I'm from -------- --------- And this is --------------------------- from ------------------------ who is going to assist me. I am sure you are all aware from the material in the Company newspaper and the posters that have been displayed in the store about our new Benefit Programs In fact they have been widely publicized outside the Company by the daily newspapers, radio and T.V. At all of the other Company locations, meetings such as this meeting today have been held for the purpose of explaining these improved benefits the employ- ees will receive. Within a few days all the other employees will have been enrolled in the new plans except at locations where employees are represented by the Retail Clerks Union These new programs will go into effect on June 1, but, unfortunately, it appears this cannot be done at this store. The reason for this is that the law requires us to negotiate these new plans with the Union that represents you, before the plans may be put into effect here. As yet there is no agreement with your Union that will enable us to make the program effective in this store. There are unions other than the Retail Clerks Union that represent some of our employees. These other unions have enthusiastically accepted our new Benefit program. As a result, the only locations where the new programs will not go into effect on June 1 are those where the Retail Clerks Union represents employees. In order to insure that all employees would receive these benefits on June 1 many months ago we approached all unions that represent any of our employees This was true not only at locations where the contracts expire on June 1 but even at locations where the contracts have another year or so to run. As early as January 10 of this year, the Company's Labor Relations Director reviewed these new programs with officers of your international union in Wash- ington . The Company requested that negotiations be commenced immediately and offered to be available at the union's convenience. On February 14, a meeting was held with the entire Executive Board of the Retail Clerks Union during which the details of the new Benefit Program were furnished. Again, the Company requested negotiating meetings to be arranged. MONTGOMERY WARD AND CO., INCORPORATED 1207 We have been extremely disappointed in the attitude of the Union. While meetings were held with other unions, it was not until April I that any meetings were held with the Retail Clerks Union and this was only for a group of Cali- fornia stores and several other locations. Subsequently some other meetings were held, but as of today, we have no agreement that will permit us to make the program effective at all Retail Clerk locations. This is true despite the fact that no real objection has been made to the employees of the new Benefit Program. We sincerely believe you should not be deprived of these new benefits. As far as we are concerned, you are Ward employees, not Retail Clerks Union employ- ees. Nonetheless, under the law we have to deal through your Union and legally we cannot make these programs effective here until some understanding is reached. We do believe these new benefits will apply to you even though it may not be now. Because of this and because we believe you have a right to know what the Company wants to do to improve your security, we shall explain the new benefit program today. We do recognize our bargaining obligation and will fully nego- tiate on the terms of any contract with the Union, including the terms of these programs. It is our sincere hope that these programs as explained today will be effective here within the very near future. During the next 45 minutes or so we are going to view a film which highlights what these Giant Steps are and how they affect us and our families. But before we start, let's take a moment or two to look at our present benefits. They are important to all of us. They provide help when we are sick or injured- protection for our families when we die-and a lifetime income when we retire. To date, our benefit plans have paid out millions and millions of dollars to Ward employees and their families. They offer all of us protection and security-in addition to our pay. Wards believes in benefits In fact Wards invented group life insurance way back in 1912. Our benefit plans have been revised many times since then- always to give you and your families moie and better protection. Last year we decided to make some new changes-to better fit the needs of all of us. Although the plans we have now are good ones, we can't stand still. There was also placed into evidence the 40-page conference leader's script explain- ing the benefits themselves. It consists of a very detailed statement of the retirement, pension and stock-purchase plan. The covering page says it is a "suggested" script, and that it "is not intended to be read verbatim. Instead it should be put into your own words . . ." The instructions also stressed the importance of "audience participa- tion" and invitations to questioning. At several places throughout the script the speaker is reminded to call for questions from the employees At the close of the speech again a substitute last page was used to adjust to the existence of a bargaining agent in the store In place of the closing statement used in nonunion stores elsewhere, which served to distribute printed explanatory booklets on each of the three major benefits as well as enrollment cards to the employees, here the speaker ended with telling the employees they could see the booklets by going directly to the store manager, and his virtually last statement was: "Now, how about more questions?" On June 4 there was prepared at Chicago a one-page document entitled "Union Security Provisions-Retail Clerks Locations," over the signature of the labor rela- tions director. It was addressed to "store managers" and distributed to them. The statement advised the employees that as their union contract had expired on June 1 they were no longer required to join the Retail Clerks Union, because the union- security provision was no longer in effect. It also said: "Any employee who is now a member of the Union and who wishes to withdraw from the Union may legally do so." It went on to say that dues deductions, where authorized, would continue .. temporarily. However, unless a contract is agreed to in the near future, we shall promptly discontinue this practice " In a number of the stores named in the com- plaint this notice was posted on the bulletin board. In virtually every store where the benefits speech was given questions were asked by employees seeking information on how to obtain the benefits quickly and how to "get rid" of the Union. The extent and character of the assistance given them by management representatives towards carrying forward decertification movements, and of the participation by supervisors in these activities, are reflected in the next section of this report under the heading "Store Activities." 1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Store activities As in every case bottomed upon a theory of overall bad-faith conduct, the record here reflects countless details of what a great many company representatives said and did in relation to the decertification activities, descriptions of office space and prox- imity of employee stations with respect to managers' locations, precise minutiae of information and assistance given by company agents to employees in preparing and circulating signature lists and petitions, and even gestures and hand signals among the people in the many stores while all this activity was going on. Part of this evidence is significant and very revealing as to the Respondent's purpose. Much of this mass of evidence is literally relevant and may afford some slight cumulative indication of the underlying motive, but is not of substantial value, particularly in view of the other clear and meaningful facts of the case. Necessarily the report of a Trial Examiner in a case of this kind cannot and ought not repeat all that appears in the record; indeed much testimony was received only because there was no way of evaluating, in advance of its offer, the relative weight it would eventually have. There is set forth below, therefore, only those facts that can be said truly to shed a revealing light of the principal issues, and the selection of what merits discussion in this decision was dictated by the exercise of a necessary discretion and fair appraisal of the record as a whole. (For precedent, see Jacobs Manufacturing Co., 136 NLRB 35, 44.) La Grange, Illinois- Nolan, regional personnel manager, gave the benefits speeches here on May 22 and 23 to five separate employee groups. He had received the decertification brochure a week before and had read it; he gave it to the store manager before speaking. Each meeting lasted 11/4 hours and Nolan went out of his way to invite questions as he spoke. During his first speech, starting at 9 a.m , employee Paul Tuskey asked "if the benefits could go into effect if the employees dropped away from the Union." Nolan told Tuskey to ask the store manager. A similar question was asked by another employee in one of the later meetings. At 10 a.m. that same morning Tuskey went into the office of Merchandise Manager Jarrett Thomas and asked "if there was some way that he could get rid of the Union," and Thomas replied "only ... through a decertification of the petition ... by a decertification petition." Tuskey asked "how to go about doing it," and the manager told him to " get the names of the people in the store . . . where the Board was, and the address . . . to get the names of the people and have them sign." Thomas also advised Tuskey to sign up 30 percent of the employees, and to have the signatures dated. Later, still the same day, and as Nolan continued to give his talks, Tuskey and Pat Barry, another employee, started to seek signatures to an antiunion petition. They solicited in the store, in the selling areas, during working hours; Tuskey did not testify but a number of employees said that he solicited them during working hours. They obtained 32 signatures by May 24; Manager Thomas knew the petition was being circulated in the store for Tuskey went to his office to talk about it, told Thomas how many names he had up to that point, and asked were they enough. Thomas told him what he thought. The manager also admitted, while testifying, that he knew of Barry's like activities. On June 4 or 5 the manager posted on the store bulletin board the main office notice announcing the employee's right to withdraw from the union and to stop dues deduc- tions because the current contract had expired. On June 11 Tuskey and Barry left the store during working hours without punching their timecards to go to the Board's Regional Office in Chicago to file a decertification petition; they were absent about 11/2 hours. The manager and their immediate super- visors knew they had left and Barry's direct superior knew the girl had gone to the Regional Office and why. On June 13 Barry and an employee named Yoder left work again for over an hour to visit the Board's office. Although the store manager later, at least, learned where these employees had been during these absences, all three were paid in full for time away from their work on these two occasions. After her petition had been filed Barry was advised by the Regional Office that the signatures on the supporting petition were not sufficient. She proceeded, on June 18, again with Tuskey assisting, to circulate a supplemental petition; she did this again in the store, and of the 20 signatures she succeeded in obtaining during June 18 and 19, a good portion signed up during working hours. Again the manager knew she was circulating a petition in the store at that time. Store Manager Thomas testified unequivocally that there was a policy in effect in the store against union solicitation during hours. Joseph Ungari, secretary-treasure: of the local union, testified credibly that on June 8 he and two other union officers were at the store speaking to employees. They were told by both Manager Thomas and Operating Manager Knight to leave the store, and were not permitted to talk to the employees in the selling areas; they left as ordered. Thomas recalled having ordered these people to discontinue their solicita- MONTGOMERY WARD AND CO., INCORPORATED 1209 tion; he testified his orders were limited to preventing the union officers from soliciting employees during their working time. He admitted, however, having seen one of the officers speaking to employees on business matters on another occasion, and that he had never before asked any Retail Clerks official to leave the store. The decertification petition was filed on June 11 and on July 17 the Respondent refused to bargain further for this location. Carlinville, Illinois: Nance, a district manager, gave the benefits speech here late in May. She mentioned no union. Apparently realizing there had been an error, early in June she returned to the store with Clement, a higher official, who proceeded to give the corrected benefits speech, including that portion which advised that because the employees were represented by the Retail Clerks, the benefits would not be placed in effect at that time. Before Clement started to speak, and as the girls were gathering to hear him, the store manager, Fraser, told employee Frances Ringer "to be sure and ask how to withdraw from the union." Ringer did ask Clement "how we could get out of the Union," and the reply was "we would have to file a decertification petition and in some manner or fashion we would have to submit something with our signatures, a majority of signatures ...." Ringer asked where she could obtain such a petition, and Nance replied that the store manager would give it to the employees. An antiunion petition was circulated and the signatures of practically all the employ- ees of the store placed on it on June 25. At that time Fraser was on vacation, and Helen Dowland, the credit manager at that time in charge of the store, circulated the paper for the names. Dowland was also acting manager in August, when the com- pany election took place .4 The decertification petition itself was typed up by employee Hartley, who then placed it and the signature sheet in an envelope and asked Nance to take care of it for her. The manager, using a company envelope, in her own hand addressed the letter to the Board and mailed it. The petition was filed on July 1 and on July 27 the Respondent refused to bargain further for this location. Marietta, Ohio: Van Angelo, a visiting manager, gave the benefits speech here on May 21. When he finished employee Dore Hines spoke to him, saying: "I would like to participate in the benefits and asked him how I could get the Union out of the store." Van Angelo asked Hines to "see me tomorrow." On June 1 Hines asked the store manager, Giniecki, "what I could do to get up a petition to get the Union out of the store." The manager handed him the decertification brochure, and the employee made notes from it. In the conversation Giniecki asked Hines "If I knew how many signa- tures I needed and how I could get them." Hines prepared a signature petition fol- lowing the phrasing suggested in the brochure. On the 3rd he circulated the petition and obtained 14 signatures, at least 8 while the employees were at work. While he was so engaged the manager asked him "if I had the petition going," and when Hines replied that he did, suggested that he make a photostat copy of it. In due course Hines received a decertification petition form from the Board's Regional Office and returned with it to the store manager for assistance. Again the manager handed the employee the decertification brochure, and this time Hines ripped off the petition form attached and used it as a guide. During this conversation the manager said to him: "You are going to complete it and return it, aren't you?" Rex Lowe, business agent of the local union, testified credibly and without contra- diction that before June 1963 he had many times entered the store to speak to employ- ees, with the privilege never being curtailed by management representatives. On June 14 he came to check on the rumors of decertification activities and Assistant Store Manager Lisi asked him, and Sherman, an accompanying union organizer, to go to the manager's office. There the manager told them his orders "from the personnel office in Chicago" were that the men were not to speak to the employees in the store and that he would have them removed if they did not desist. Lowe also testified that in July he was again ordered out of the store by Hoy, the new manager, who had replaced Giniecki. According to Hoy all he told the union representative was that he was not to bother the people at work, and he denied having ordered the men out of the store. The decertification petition was filed by Hines on June 10 and on July 17 the Respondent refused to bargain further for this location. Butler, Pennsylvania: Store Manager Thompson received a copy of the decertifica- tion brochure in the mail and District Manager Kerin gave the benefits speech in this location on May 20. While Kerin spoke to the approximately 100 employees assem- bled, an employee asked "what would happen if there were any other representation in the store," and Kerin said he did not know, but, during the talk, advised employees to see the manager if they had any questions about the benefits. Shortly before June 5 the manager received the Chicago announcement concerning the suspension of • I find that at these critical times Dowland was a supervisor within the meaning of the Act. 1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee obligation to continue union membership or checkoff of dues. On instruc- tions from the labor relations director the notice was posted at a number of places throughout the store. Manager Thompson testified that within a week after he posted this notice several girls came to him to talk about it; two of them were Rose Nanni and Shirley Gal- lagher, Gallagher asked him about decertifying the Union, and the manager "described" the procedure to her. He gave the same full explanation to employee Iman. On June 18 Gallagher wrote to the Board for appropriate forms and received them. On June 20 she returned to Thompson again for help in preparing the formal petition and this time he told her, as he recalled: "This is of no value until she had done step one first ... you have to get the percentage of the employees to sign the petition. The NLRB form is of no value unless you got that." He then told her what to write at the top of a signature sheet, how many signatures she should obtain, and to have them dated. He closed with saying that when she had done all this he would help her to complete the final petition. Both Gallagher and Nanni worked in the credit department, next door to the office of the manager and the assistant manager, where Gallagher spends half her time typ- ing and filing, some of it confidential. She went on vacation between June 22 and July 7, but spent the second week in town. Between July 2 and July 5 she successfully solicited about 40 signatures to an antiunion petition, all in the store, the warehouse, or the garage. She said that while she was off duty, most of the employees were at work when they signed. At this time Assistant Manager Hilliard was in charge of the store because Thompson was on vacation. During her solicitation activities Gallagher once sat in the manager's office and told Hilliard she was having difficulty obtaining signatures because some employees feared discharge if they signed; he assured her they had no reason to be afraid. Hilliard was a very hostile and reluctant witness; on the extent of his knowledge of Gallagher's activities in the store that week he testified, under pressure of extensive cross-examination, that he had a "suspicion" the petition was being signed, "he assumed" Gallagher was obtaining the signatures, "maybe" he told her the employees would not be discharged. Hilliard's testimony set out here was drawn from him only after painstaking and repetitive referrals to his earlier affidavit; his demeanor gave to his every oral admission against interest the most probative value. Manager Thompson testified unequivocally that there is a no-solicitation rule in this store. When she had obtained sufficient names Gallagher telephoned Hilliard for assist- ance in completing the regular decertification petition form and they arranged for her to go to his home that night, where she went with Nanni and other friends. Hilliard looked at her signature sheet, and she explained she was in a hurry because employees were beginning to remove their names from the list; Hilliard gave her all the informa- tion necessary for the petition. When Gallagher and her friends had left, Hilliard returned to the store for a final item of information he did not have at home-the address of the local union. On returning home he telephoned Gallagher to tell her this. Somewhat later, still that same evening, Gallagher lacked still another bit of informa- tion-this time the date of the local's certification. Again Hilliard left home to return to the store, found this, and after returning home telephoned Gallagher anew. Finally, Gallagher was able to file the petition in a letterbox about 1 or 1:30 a.m. After the company notice relating to the privilege of discontinuing union checkoff was posted, employees started to go to Naomi Pugh, the head cashier, to inquire how to go about it. She twice asked Hilliard what was required; the first time he told her "a signed request" would be sufficient She spoke to him again, because the requests were coming on slips of paper only; she asked was this sufficient. Hilliard consulted with Store Manager Thompson and then told Pugh: "That before we could stop deductions that there would have to be a withdrawal and that both parties would have to be notified." Pugh passed this information along to the employees, and at least one girl, Nanni, who had first written only that she wanted the checkoff discontinued, was told by both Pugh and Thompson to send a registered letter also to the Union saying she was "withdrawing from the Union." Thompson admitted that after these talks with Pugh, he told several employees to send registered letters to the Union. The decertification petition was filed on July 10 and on July 17 the Respondent refused to bargain further for this location Meadville, Pennsylvania: Store Manager Ralph Sterritt received the decertification brochure the day before District Manager Kerin arrived at Meadville to give the bene- fit speech on May 23. Shortly after June 4 the store manager also received the com- pany notice on dues deduction discontinuance and posted it on the bulletin board. Shortly thereafter he called six employees individually to his office for interviews, and explained to them the contents of that notice and told them to read it. He said he did this because it had been reported to him that employees had been told they would be penalized for discontinuing union membership. In his uncontradicted testimony, MONTGOMERY WARD AND CO., INCORPORATED 1211 Gigone, one of the employees called to the manager's office, quoted the manager as saying to him "... he wanted to know if I knew that there was a notice on the bulletin board that I didn't have to join the union as the union contract was no longer in effect after June the 1st." Some time between Kerin's benefit speech and June 12 Ralph Canney, manager of the tire department, asked Store Manager Sterritt how to decertify the Union. The manager gave him full information, including the language for a signature sheet, the number of employees required, dates, etc. Sterritt testified that "maybe" he called Labor Relations Director Scheidt at Chicago for further help on the matter. On June 12 and 13 Canney circulated a signature sheet, and with help from Klein, a tiremounter in his department, obtained 26 names. Klein and Hilton, another tire- mounter, signed for him. Klein assisted in the solicitation and himself obtained some of the names. Although Canney's work station is outside the building proper, in the warehouse or tire section, he signed up at least three girls in the credit department, immediately adjacent to the manager's office. While he was so engaged, on June 12, he was in and out of the office. He showed his sheet to Sterritt, "it was possible" the manager told him he already had enough names, he called the Board's office from the store and told Sterritt he was waiting for a return call. Apparently while all this collaboration was going on Sterritt told Canney that there were "quite a few" decertification petitions being cii culated. Hutson, the assistant store manager, also knew what Canney was doing. Hutson testified that during that period a union business agent told him Canney was circulat- ing an antiunion petition on company time but that he, Hutson , ignored the complaint and said nothing to Canney. Sterritt said he saw Canney with a "paper" in the store during working hours, and "assumed" he was getting signatures; the manager also admitted Canney told him "he had a lot of names on the petition " At one point in his testimony Sterritt said he once told the tire manager "he should not be doing this during company hours," but Canney, called as a witness by Respondent, was positive neither the manager nor assist- ant manager ever mentioned a no-solicitation rule to him or told him he should not circulate such a petition in the store. Asked on cross-examination whether the assist- ant store manager knew about the signature petition before it was filed, he answered: "How the hell was he not going to know about it." While soliciting signatures Canney said to one of the employees, Stump, that the Company was going to drag its feet in the negotiations, and, according to Stump's uncontiadicted testimony, that ". . . it would be a good thing for him [Canney] as far as being in good with the boys if he did pass such a petition . . . the boys in Chicago or the Company boys." The record shows beyond question that Canney was a supervisor within the mean- ing of the Act. He was manager of the tire department; he hired tire mounters who worked under his immediate and direct supervision; he had authority to discharge them Three of the men he hired directly were identified on the record by name- Klein, Hilton, and Foster. He consulted no one in deciding who to hire; he had authority to grant overtime, and to set pay rates. These facts stand on the direct statements of the store manager. The decertification petition was filed by Canney on June 14 and on July 17 the Respondent refused to bargain further for this location DuBois, Pennsylvania. The benfit speech was given here on May 21. Within a few days Store Manager Mann received the decertification brochure from Chicago. At one point in his testimony Mann said he never removed the document from his file after receiving it; later he admitted he discussed decertification procedures with Podeszwa, the new assistant manager, when the latter arrived during June. Mann also received the June 4 announcement about discontinuance of dues checkoffs and posted it on the store bulletin board when he received it. Mann testified that "a few" employees asked him how to stop paying dues; among these he said was Jane Mack, then a credit clerk and later credit manager, who was stationed next door to his office and who frequently worked right in his office Mack later became the prime mover in the decertification movement On June 22 Mann read to the assembled employees a speech prepared in Chicago; it explained to them in detail the conversion plan-a change in method of pay for most of the selling employees-which was then being urged upon the Union as one of the Company's contract proposals. He stressed the thought that this change was a bene- fit to the employees, and at the start of his talk told them that while the plan had already been put in effect in all the Company 's stores where employees were not repre- sented by the Retail Clerks, here this could not be done because "no agreement on a new contract with that union has been reached " As he spoke he added that ". . . we 1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are obligated to negotiate this plan through the Union ... it was proposed to the Union months ago ... the plan itself ... cannot be actually installed in our store until agree- ment has been reached with the Union." Shortly after the benefit speech of May 21 the employees began to send in written resignations to the Union. As will appear below, on August 7 the Company and Inter- national Union officials settled on a contract for all stores, subject only to local ratifica- tion. Before August 17 the employees of the Dubois store voted to ratify, and Labor Relations Director Scheidt was so advised in writing by the local union secretary- treasurer on that day. By letter of August 30 Scheidt told the store manager that although the formal contract was yet to be signed, in view of the ratification vote the substantive economic terms of the new agreement were to be put in effect immediately. He also enclosed a formal notice explaining the new union-security clause, which stressed the innovation that once the formal contract was finally signed, all employees would be obligated to join the Union. Scheidt's letter instructed the manager to post this notice immediately; Mann posted it as directed. He also put the contract terms in effect in the store. On August 28 and 29 Jane Mack, of the credit department, circulated a petition aimed at decertifying the Union and obtained 18 signatures. She testified that she had not been assisted by the store manager, and had not discussed with him discon- tinuance of her union dues, but the store manager contradicted her and said she had spoken to him about it. He also testified he was off duty from Wednesday, August 28, through Labor Day, but that during that weekend he was nevertheless in the store and learned of Mack's decertification petition activities. There is also the testimony of employee Ferraraccio, conceded by the manager himself, that during the week of August 28 Mann said he would not tolerate union talk on company time. The decertification petition was filed by Mack on September 6 and on about Sep- tember 14 the Respondent refused to bargain here. Punxsutawney, Pennsylvania: In a letter dated May 22 Store Manager Anderson received the decertification brochure from Chicago. On the same day, May 22, the benefit speech was given to the employees. Anderson also received and posted the dues-deduction notice dated June 4. By letter dated June 22, he also received Scheidt's letter instructing him to read a prepared speech to the employees explaining the salary cont"rsion plan being offered then to the Union. This is the same letter and speech sent to the Dubois store Without explanation Anderson testified that despite the instructions to him, stated in most unequivocal and forceful words in Scheidt' s letter he did not give the speech. One of the clearest facts established by this long record is that Scheidt is absolute boss over all management in matters relating to union affairs. Appreciation of the extent of management's participation and assistance in the decertification steps later taken by Kenneth Biggs, manager of the appliance depart- ment who had 11 years of service, and by Mary Fusco, 18 years the cashier, requires some words on the credibility of the manager at the hearing and on the testimony of Biggs, both clearly hostile witnesses called by the General Counsel. On August 7 Biggs and Fusco obtained 10 signatures to a document intended to support a decerti- fication petition, the wording at its top reading' "We the undersigned no longer desire the Union to represent us." This is precisely the language appearing in the decerti- fication brochure in the manager's possession at that time. Biggs filed a formal petition on August 12, and both he and Manager Anderson testified there had been a meeting at the manager's home on the evening of August 8, where the manager assisted Biggs in the details of its preparation. A point at issue is whether the manager also assisted Biggs, before anything was done with the final petition itself, in preparing the signature sheet, and proceeding correctly at that early stage. Anderson testified that his first talk with Biggs on the entire subject of the Union occurred on Thursday, August 8, when the man called on the telephone to ask could he go to the manager's home that night, and that only at 10 p.m. that evening did Anderson first learn Biggs wanted help concerning a decertification matter. Anderson added he had to go back to his office to pick up the decertification brochure for detailed information. Again and again he insisted Biggs had never before mentioned decertification activities to him. With the General Counsel pressing for a better recol- lection, Anderson's testimony became more and more irrelevant and impertinent. Finally he admitted that before the meeting in his home he did "recall Mr. Biggs say- ing something about the heading" for the document he was going to pass about. He persisted to the end that he not give Biggs the language to be used on the signature sheet. As a witness Biggs consistently denied having asked Anderson for any information or assistance during June or July. He also testified it was he who first told Anderson what words he had used at the top of his signature sheet, his purpose being to inquire of the manager whether it was correct. Confronted with two affidavits he had earlier given to a Board field examiner, Biggs admitted he had two talks with the manager on this subject. tho first 3 or 4 days before the August 8 meeting at the latter's home. MONTGOMERY WARD AND CO., INCORPORATED 1213 Biggs' two affidavits were received in evidence, one dated September 26 and the other September 27. He testified he had read and understood them and swore to them because he believed them to be true. Among other things the first affidavit contains the following: I asked Mr. Anderson, the store manager for information as to how to complete the forms. I asked Anderson how to go about getting a vote, and he told Fusco and I that we would have to get a certain number of employees on the petition before we could have a vote. I asked Anderson this about the time of the letter saying we could withdraw from the union was posted on the bulletin board .... I asked Anderson on Tuesday night after the store closed at 5:00, about the word- ing to use as a heading for the petition we were going to circulate. This was Tuesday, August 6, ... he told me something like we would have to use a separate paper with a heading on it and get the employees to sign that instead. Biggs also testified that after signing the first affidavit, he pondered upon the matter and thought he had made some errors and wished to correct them. He went to the field examiner who was still in town and asked the privilege of making a supplemental statement; the investigator obliged him. In addition to some minor changes in the details of which employees signed the petition sheet and where, Biggs added the follow- ing paragraph in his second affidavit' "Mr. Anderson, the store manager actually sug- gested the language that was used on the heading of the petition when I telephoned him on Tuesday, August 6, 1963. I asked him what to put on it, or head it, and I wrote words to the effect of his suggestion which was later typed on the petition by Mary Fusco." Asked by the General Counsel to explain his rejection of the earlier affidavits in this important respect, Biggs related how a few weeks before the hearing [held on Decem- ber 11] two of the Respondent's lawyers-Mr. Hanley and Mr. Winski-were talking to him at lunch in the Elks Club about his testimony, where Manager Anderson, and Cowan, the man who holds the key to the store and who once was assistant manager, were also present.5 Biggs testified that at that conference the manager "said he thought I was wrong that he hadn't given me" the heading of the signature sheet, and that that was the time when he became "confused" as to what had really happened. He added that the company lawyers also told him he "didn't have to make a statement to any Board representative, and that for this reason he had refused thereafter to speak with the General Counsel's representatives before the hearing. There is no need in this case for technical legal rulings, as the General Counsel argues, on the law of evidence relating to past recollection recorded. Biggs did admit he discussed his activities with the manager 3 or 4 days before August 8-and this was before he prepared the signature sheet, because the names are dated August 6. Its wording follows the Company's decertification brochure which Anderson already had and which the Respondent prepared for the very purpose for assisting possible decerti- fication petitioners. At the hearing Anderson contradicted himself brazenly a number of times on very significant matters; he was repeatedly evasive, frivolous, almost con- temptuous of the entire proceeding. He blandly insisted that whenever he is absent -sometimes for 3 days at a time-no one is in charge of the 30 to 35 employees of the store, and his total testimony and demeanor served only to discredit him com- pletely. (See, especially, his testimony, below, on how he opined-" a registered guess"-the Union did not represent a majority in November, his knowledge based on his ability to "tell a Democrat from a Republican," and how he acted on his decision alone to cancel a meeting with the local union. In a matter of minutes he switched and said he had been ordered to do this.) 5 Cowan, who called himself senior department head, signed Bigge' petition and accom- panied him to the homes of employees to help solicit signatures The evidence supports the General Counsel's contention that Cowan was a supervisor within the meaning of the Act. He has worked in this store for 18 years, and in 1948 became assistant man- ager. He said a few years later he quit that post because he did not want to be trans- ferred to another city ; no assistant manager ever took his place He has the keys to the store, and opens and closes in the manager 's absence Anderson tells him to help on certain things, such as check the purchases of employees when they leave the store. He also said that, on Anderson's instructions, in the manager's absence he approves cu'tomers' checks, hears adjustments of customer complaints over the department heads, approves the removal of merchandise from the store for demonstration purposes, and answers any questions by department heads. He also admitted that in the manager's absence he super- vises all of the employees "if supervision is needed," and that a previous manager had also extended him this authority. 1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD His denials to the contrary, it is found that Anderson did assist Biggs in the first step by advising him on the mechanics of the signature sheet, even to the details of what language to use. It is also a fair inference , despite his unexplained denial , that he did, as ordered from Chicago, make the June 22 speech explaining the wage conversion plan, with its advice that employees not represented by the Retail Clerks had already received this "benefit." Then, as both Anderson and Biggs admitted, late at night at the manager's house until 11.50 p.m., Anderson helped Biggs with the data required for correct filing of the eventual petition . Biggs' affidavit says he signed it in the man- ager's presence. The decertification petition was filed on August 12 and on November 20 the Respondent refused to bargain further here. South Gate, Michigan: The benefits speech was given here repetitively on May 21 and 22, to the approximately 375 employees. Questions were asked; one of the employees, Miara, wanted to know "if we cannot have these benefits, then how do we get rid of the Union," and the speaker said that "in the back of his book he had a paper telling us how to get rid of the Union," and that "it would take a certain percentage of names and we could file a petition and get rid of the Union." He added if anyone wanted to see his document they should see Mrs. Murdock the next day. Murdock is the store personnel manager. Miara spends 2 or 3 days weekly working in the office of the personnel manager on personnel records. Thereafter several employees went to Murdock's office to inquire about decertification. Among these were Dolores Dick- erson, Nan Stafford, and Millie Smith Millie Smith, a switchboard operator , and Stafford, were the principal actors in circulating an antiunion signature sheet. Stafford is 20 years a next door neighbor of Murdock and asked her for help. One of these employees called the Board's office in "July or the last week in June." They gave conflicting, implausible, and most eva- sive testimony on who helped them or how they did all this. Stafford, who signed on July 19, said the sheet heading was written a week earlier. In any event, between July 19 and 27, they successfully solicited 82 names ; by August 17, they had added 30 more Murdock also testified that when she returned from her vacation on August 26, Smith told her they had enough signatures and were filing a decertification petition. The solicitation of signatures was carried on openly in the store. Smith twice called Ruby Springer from her place of work to the switchboard in order to solicit her signa- ture. She also called Emile Gego on the PA system. Smith's denial of Springer's tes- timony is discredited, because Smith's story reveals an unmistakable intent to conceal. Management knew of Smith 's and Stafford's activities in the store . From Personnel Manager Murdock's testimony: Well, occasionally Millie would say, "Well, we have so many signatures," or, "we have so many," but this was on a voluntary basis when she would go by. She would-you see, she comes to my office to drop off the teletypes that come in. Well, as I say, she would tell me how many signatures she had to date. I would say two or three times at the least she mentioned to me when she came in, "well, I got three more today," or something like that. The personnel manager testified unequivocally that there is a no-solicitation rule in effect at this store. There is also testimony, however, by Russeau, business agent of the Local Union, that at times over the years he has been in the store passing out monthly buttons to the employees and checking on grievances. He said- "I don't see how they could stop us ... its open to the public." During the circulation of the decertification petition Russeau appealed to the personnel manager and to Carlson, the store manager, protesting that this violated company rules, and that the union officials would solicit on company time to counteract that petition. The personnel manager checked with her supervisors and told him it would not be permitted. She spoke to Stafford and told her not to do this on company time. The decertification petition was filed on August 21. There was no literal refusal to bargain here. After a strike a contract was signed on January 6, 1964. Royal Oak, Michigan: Clement, a company representative from Chicago, gave the benefits speech on May 22 in this store. One employee, Farkas, spoke up to say "It was unfair to the employee if others got the benefits." Farkas asked was it possible for the employees to obtain the benefits and Clement said not unless the Union agreed. Farkas went on that it was unfair and asked "did the employees have to put up with the Union." At this point Clement said: "It was legally possible to remove a union from a company but it was infrequent and it doesn't happen that often," that he was MONTGOMERY WARD AND CO., INCORPORATED 1215 not there to discuss it but Farkas could see him later. Another employee, O'Kelly, said: "We don't need a union, how can we get the Union out of here." To him also Clement said "See me after the meeting." 6 After Clement had completed his talk, Farkas spoke to him in the store manager's office and asked how the employees could remove the Union; Clement answered "through an election," with a petition signed by 30 percent of the employees and filed with the NLRB. Unable to give Farkas the exact language for the signature sheet, Clement called his Chicago office and was told he had such information with him. He then looked among his paper and found some material from which he gave Farkas the exact language to be used. He also warned Farkas "he was on his own" and not to solicit signatures on company time. During the week following Farkas "covered all of the departments in the whole store" soliciting signatures against the Union. He spoke to Hurak, the store manager, "a couple of times" while he was doing this • "I told him 1 was doing real good and I almost got all the signatures." He recalled the manager saying to him "The Company couldn't do anything until I actually got these signatures." Farkas never obtained enough signatures, nor filed a petition; he showed his signature petition to the manager, who looked at it and told Farkas that while he had his friends on it he had failed because he "couldn't get the old timers to go along" with him. A second signature sheet to support a decertification petition was circulated by O'Kelly in September; approximately 53 signatures were obtained within a single day. During September, the day after a union meeting, McCauley, the store comptroller, spoke to Betty Lynn, an audit department employee, and asked "how the meeting went" the previous night. Lynn said she was dissatisfied with the offers that had been discussed, and McCauley then said: "If I [Lynn] wanted out, there was a paper I could sign." A decertification petition was filed on September 6. There was no literal refusal to bargain here and after a strike a contract was signed on Februray 4, 1964. Port Huron, Michigan: Vandergrift, a district manager, gave the usual benefits speech here on May 23. According to the credible testimony of employee Hildegarde Ruff, as Vandergrift spoke one employee commented aloud "If we wanted these bene- fits then we would have to get rid of the Union." There is also uncontradicted testi- mony that Vandergrift found occasion to say during the speech that "it was a darn shame" the employees were not getting the benefits at that time "due to the fact that we were a union store." A few days later Florence Smith, credit department manager, asked Store Manager Krysten Smith where to write for information on how to obtain an employee vote on whether to keep the Union in the store. He gave her the Board's Detroit address. The manager denied he gave any employee any other information concerning decer- tification procedures of any kind. He said he never saw the Company's decertification brochure. On May 27, Marvel Meiers, the head cashier, circulated an antiunion signature petition and in one day successfully solicited 20 names from the 40 employees in the store. Several employees testified, with no contradiction, she solicited them in the store during working hours. The petition, in evidence, is headed by a 23-word state- ment following, verbatim, the suggested language set out in the decertification brochure. 0 Madeline Sulkanen , an employee of the Retail Clerks Local Union in the Detroit area, and who had worked in this store in 1963, testified that McCourtney had been her "supervisor," and 4 days after Clement's speech said to her "You know you can get the Union out of the store," and that there were forms and procedures in the manager's office. She also testified McCourtney told her this several times thereafter. Upon the basis of Sulkanen's demeanor as a witness, an inherent implausibility in her testimony, and the generalities of her description of McCourtney's duties, I find her testimony in- adequate to prove, as the General Counsel contends, that McCourtney is a supervisor within the meaning of the Act, and therefore rest no finding of improper conduct charge- able to the Respondent upon that lady's activities According to Sulkanen, McCourtney always knew her to be enthusiastic about the Union, and told her these things during the very period when she, Sulkanen, was taking time off from work to participate in union activities as a member of the bargaining committee; she also said it was McCourtne'-'with whom she cleared for such absences each time. She called McCourtney her "boss," said she saw her interview applicants for employment, and added McCourtney instructed her in her duties because she was new. 1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The second name on Meiers' petition is that of Credit Manager Smith. Smith was credit manager for 10 years and earned $70 weekly while the six or seven girls in her department earned about $56. She said she assigned work to the girls and interviewed applicants for employment "... He '[the manager] would tell me to contact or call the Unemployment and get some girl in and I would take their application and if I thought they were one who was satisfactory, I would discuss it with him before I would tell her to come to work." (sic) "Quite often he would review and he would say if you think it is all right, let's give it a try." Asked whether Smith had general supervision over the girls in the credit department, the store manager testified: "Well, yes, as far as seeing that they were getting their share of the work done and so forth." The manager also said it was he who made the final decision on hiring. The evidence in its totality warrants a finding that Florence Smith was a supervisor within the meaning of the Act.7 A decertification petition was filed on May 28, 1963. During a bargaining meeting on June 4 the Company Labor Relations Director said he would no longer bargain for this location; the refusal was repeated on July 17. Petoskey, Michigan: Here a benefits talk was given by Vandergrift on May 21. During the speech employee Paxton, himself not a union member, asked: "Why he couldn't have the benefits," and the speaker said "it was impossible for the Company to grant benefits to the Union under the present contract as the Union would not accept the benefits." At this point Store Manager McVay, who was present, said: "It was too bad that so many had to suffer because of so few." A few days later Paxton went to McVay in his office and again asked why he could not have the benefits. More precisely Paxton asked the manager "if there was any- thing the employees can do to be able to get the benefits without delay." The manager replied: "I don't know much about the situation but that he might ask for a decertifi- cation petition." (Both these quotations are from the manager's affidavit given 6 months before the hearing at this location.) McVay had received the decertification brochure in the mail before the Vandergrift speech, and had read it. At the hearing he first denied having suggested decertification to Paxton; later, confronted with his earlier affidavit, he admitted the fact. He also twice denied having suggested the language later used by Paxton on a signature peti- tion Paxton contradicted him squarely on this point, and the petition, in evidence, is phrased precisely in the 23-word sentence set out in the decertification brochure. In the circumstances of McVay having the company literature on decertification in his possession, its purpose concededly being to help managers advise employees concern- ing such activities, and the manager's departure from his earlier sworn statements, his attempts at the hearing to retract his earlier affidavit and his attempted denials of having assisted Paxton on the details of the decertification procedures were unpersua- sive. He emerged as a clearly discredited witness, with his affidavit as a direct admis- sion against interest binding upon the Respondents On May 27, 17 employees signed a decertification petition sheet; Paxton said he obtained some of the signatures in the store itself. He also credibly testified that in the preparation of the formal decertification petition, the manager assisted him with the name and address of the Regional Director in Detroit, and the assistant manager with the precise unit description. Soon thereafter Paxton filed the decertification petition, which turned out to be defective in some details, and he refiled a final one later. Meanwhile, about June 14, the manager received the Chicago notice announcing the employees' release from any contractual obligation to continue union membership or dues payments. The decertification petition was filed on June 25 and on July 17 the Company refused to bargain further. Muskegon, Michigan- As Vandergrift was giving the benefits speech here on May 24, an employee, Ernest Smith, asked whether those who were not members of the Union could receive the benefits immediately, and Vandergrift replied not until agreement was reached with the Union. 'The Port Huron retail store was closed on Christmas 1963. The catalogue de- partment was continued and, at the time of the hearing, the Company operated it only as one of its regular catalogue stores. Florence Smith is in charge, and the eight employ- ees who still work there were all employed regularly at the time of these events in the spring of 1963. s An attempt by counsel for the Respondent, while questioning McVay at the close of his testimony, to elicit the thought that the witness was misled by the field investiga- tor into signing something contrary to his true words, did not serve to rehabilitate the witness, for it was then brought out by the General Counsel that the affidavit was given in the presence of Stephen Conhain, one of the company attorneys from Chicago. MONTGOMERY WARD AND CO., INCORPORATED 1217 Somers, the store manager, testified he "might have" received the Company's decer- tification brochure from Vandergrift that day. Evelyn Dore, the girl who later became the decertification petitioner, said she obtained all her information-where to send her papers, number of signatures required, etc., from Audrey Smith, the cashier, whose office adjoins the manager's and is separated from it by a 5-foot parti- tion. Smith wrote out the heading phrase for Dore's name sheet. Audrey Smith did not testify and the manager and Assistant Manager Kunze denied catagorically at the hearing that either of them ever had any conversation at all with either Audrey Smith, her husband Ernest, or Dore on the subject of the new benefits, the Union, or the delay problem .9 On June 22, Dore circulated an antiunion petition and during that one day suc- cessfully solicited 19 signatures; she quickly mailed it to the Board's Regional Office. Apparently because this signature sheet bore no dates, Dore circulated a second on July 2, and obtained 11 signatures that day and 6 the next; she then filed a formal decertification petition. Dore obtained about 11 of the signatures on her first petition during working hours; she also solicited the second list mostly while people worked. The manager conceded that he spends about 90 percent of his time circulating about the store on his regular duties. One day sometime between June 28 and July 5-he could not be sure which- Somers told the employees gathered at a regular weekly meeting that thereafter there were to be no more "group discussions" on the sales floors, "for or against the Union." Somers said he did this in the interest of better customer service, and because "I thought the people were unhappy on their job and so forth." The store manager received the regular June 4 communication from Chicago explaining the employees' privilege to discontinue dues checkoffs and withdiaw from union membership. Employee Lyman Murphy credibly testified that on about June 4 the manager asked him if he "wouldn't like to withdiaw from the Union," because with the contract expired he was free to do so and save "$3.50 per month union dues." Somers added to Murphy that he had also spoken to others, including Don and Lou Pennington, and that the latter two were withdrawing. Murphy said he would think it over, and the manager continued that Murphy should "let him know and he said not to talk about it to anyone else because he wasn't supposed to talk to me about those things, with regards to the Union." As an adverse witness called by the General Counsel, Somers denied he had spoken about the June 4 notice to any employees. Recalled by the Respondent after Murphy had testified, he explains how when Murphy was hired he was told the union contract required membership and that Somers had promised to tell him when the contract had expired, Somers said that again in 1962 he had promised to let Murphy know when the contract ended. Although Somers did not literally admit having talked to Murphy about this in 1963, the intended implication of his testimony was to explain away what conversation must have taken place. The manager did not otherwise contradict Murphy. I credit Murphy's testimony. Alice Burr, a clerk, was asked by several employees, including the cashier, Audrey Smith, to resign from the Union and to discontinue her dues; Smith told her to go to the assistant manager if she "wanted to know anything more about it." Burr did go to Kunze only to tell him that because of her age and her "union seniority" she hesi- tated to resign; Kunze replied that "they didn't have much time, that they wanted to get the name if it was possible, so then he said that dropping out of the Union would actually be the same as a raise because what I way paying union dues would be just like an increase." Burr returned to her department with this and wrote out a state- ment requesting that her checkoff be discontinued. She showed it to Kunze, who looked at it and said she should add "that I no longer wanted to be represented by the RCI." Burr added these words to her statement. I credit Burr's uncontradicted testimony.lo On July 1 Dore filed a decertification petition and on July 17 the Respondent refused to bargain further. 0It is found that Assistant Manager Kunze did talk to both the Smiths on this subject. He lied as a witness. His earlier affidavit, dated August 14, 1963, states: "The only discussion I have had with persons employed at Muskegon store about the nonavail- ability of the new Wards employee benefit plan were with Ernie Smith (department manager-sporting goods), Audrey Smith (cashier), and Mrs. Doris Young . . . . 10 Employees Gudelsky testified that on July 9 the manager told her this was the time "to break" the Union. She gave three earlier affidavits to a Board field examiner, dated July 29, November 3, and December 18, and, although the first gives details of the con- versation in which such a statement is alleged to have been made, there is no reference in any of them relating to such language. Her testimony is not credited. 206-446-66-vol. 151 78 1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hillsdale, Michigan- While the benefits presentation speech was being made here on May 23, Carlisle, manager of the tire department, asked Vandergrift, who was giving the speech: "Do you mean to say that we can't receive these benefits at Hills- dale" Carlisle then turned to Jack Gossman, the union steward, with: "What is the story? Why won't the Union agree to these additional benefits?" Gossman could not answer As Vandergrift was completing his talk, Store Manager Montgomery, who was standing next to him, spoke up with: "This is a hell of a note, that a small organization can deprive the employees the benefits the Company is giving." it On May 27, 4 days later, Carlisle and Helen Hamilton, 21 years an invoice clerk, filed a decertification petition with the Board's Regional Office in Detroit.12 It was supported by a signature petition on which Hamilton had obtained at least 12 names after Vandergrift's speech.33 Hamilton was off duty on the 25th, when she obtained the signatures, but she was also in the store, where she told Carlisle she was doing "pretty good" obtaining names after he asked her what progress she was making. Hamilton testified that she and Carlisle discussed the idea of decertification after Vandergrift's speech- "We talked about the benefits, and we couldn't see why we had no replies at the meeting as far as the Union went; so we figured that we would go ahead then with out plans for the decertification which we had started back in September." The decertification petition was filed on May 27; in a bargaining session on June 4 the Company negotiator announced he was no longer bargaining for this location and the refusal was repeated on June 17 Jefferson City, Missouri- Through the regular distribution of the company news- paper, in the early part of May, the employees in this store knew of the new benefits program and of the June effective date for nonunion stores. On May 21 Lewis, regional personnel manager, gave the benefits speech After he had spoken, Howley, furniture department manager, asked him for the name and address of the appropriate Board Regional Director, and this information was passed on to him on a slip of paper by the store manager later in the day. An antiunion petition was circulated in the store by employees Howley and Ritter at about this time, and a formal decertification petition filed early in June. These two men were the only witnesses called at this location and a question arose on whether the signature sheet and the solicitation activities followed Lewis' speech, or whether it all started before his arrival The issue is not of momentous significance to the case as a whole, but there is persuasive indication, in the inconsistent and vacillat- ing testimony of the two employees and on the face of the signature petition received in evidence, that all the names may well have been affixed after the benefits speech. There are 33 names, and most of the dates appearing after the signatures are in different ink Ritter started by saying the petition was written and circulated by Howley "a week or so" before Lewis arrived in Jefferson City. The first two signa- tures are Howley's and Ritter's and are followed by the dates May 18, only 3 days before Lewis' speech. Howley then said he had added the date to his signature some- time after he had signed. Ritter started with the statement that he wrote the petition the same day he began circulating it, and that this was "around the first to the middle of May." The May 18 date added after his signature is also different ink, and Ritter said he too added a date after he had signed. Of the 33 names only 6 are followed by a date May 21 or later. Ritter continued by saying that there were already 10 or 12 names on the sheet before he decided dates were needed and that all these dates were added after the employees had signed. He also testified that "Probably 8 or 10 or 12" were added after the Lewis speech. The total testimony of both men was vague, evasive, and replete with claims of inability to recall particulars. On their own admissions their solicitation activities were carried on during working hours in the store. Howley said: " .. I'd stop maybe and somebody wasn't busy, I'd hand it to them and told them to read it . . . they were on duty, some of them, yes, they weren't particularly busy .. . Some employees went to his department to sign while he was at work. Ritter obtained the Board's address by asking Lewis, who gave it to the store manager to pass it on to Ritter. When sent to the Board Office, the petition and the signature sheet were accompanied by a letter typed for Howley by the store manager's secretary.14 11 This statement was established by the corroborative and uncontradicted testimony of four employee witnesses 12 The filing date was verified in the Board 's official records in Washington, DC 13 With 38 employees in the unit, a 30-percent showing must have required 12 names. 11 The General Counsel's contention that Howley is, or was then a supervisor within the meaning of the Act , is not supported by the evidence. MONTGOMERY WARD AND CO., INCORPORATED 1219 The decertification petition was filed on June 5 and on July 17 the Respondent refused to bargain further here. Kansas City, Kansas: Towards the end of May Store Manager Kirkpatrick gave the benefits speech to the approximately 110 employees in this store. On about June 1, Miller, a salesclerk in the fashion department, asked Kirkpatrick "if there was any way that we as employees could get the benefits ..."; Kirkpatrick said, "one way would be an election, petition,"and then, at Miller's request, helped her phrase the appropriate language to head the signature petition. With Miller continuing to ask, the manager told her how many signatures were required, where to send the petition, and that his secretary would be permitted, if requested, to type the papers. The next morning the office secretary did type two copies of such a signature peti- tion, and on June 4 Miller circulated throughout the store and successfully solicited 48 employee signatures; the next day, assisted by another employee, she did likewise and obtained 10 more. Miller said she obtained all of the signatures in the store, some in the coffeeshop, some while she and others were at lunch, and about one-third of them while she or others were at work. Among the employees she successfully approached in their office were several office clerks who worked next door to the personnel manager's office.15 During July the store manager ordered Secretary-Treasurer Hess of the Local Union out of the store because he was talking to employees at work. Hess had been permitted to do this in the past with no questions asked. On June 12 Miller filed a decertification petition and on July 17 the Respondent refused to bargain further. Maryville, Missouri: The benefits speech was given late in May by District Manager Windness. After the talk Truman West, an employee, asked Store Manager Richardson when the benefits would be received, and added ". . . he was ashamed that they couldn't get the benefit just because there was a difference of opinion between the Company and the Union that represented the employees." The next day, at Kansas City, West asked Windness for help, and the district manager told him what words to put at the head of a signature petition, who the appropriate Regional Board Director was, and where to mail a petition. On May 28 and 29 West obtained signatures to a petition in the store; he advised Assistant Store Manager Hilsabeck of what he was doing. Of the 28 employees in the store he obtained the signatures of 11, about 2/3 of these while the employees and/or he were at work. The first group to sign were office employees near the manager's office. When he had sufficient signatures West received a decertification petition form from the Board's Regional Office and took it to the store manager's home one evening, where the manager typed in the necessary data. One employee, Cecil Hubbard, testified credibly and without contradiction that on May 29, when West was soliciting signatures, he told Assistant Store Manager Hilsa- beck that he had been approached and Hilsabeck asked him whether he had signed. When Hubbard answered that he had not the assistant manager said, "... he wanted me to sign it," that "it was a chance to vote for the Union or not ...... A day or two after June 4 the standard notice announcing expiration of the con- tract and employee freedom from obligatory union membership or dues checkoff was received; it was posted on the bulletin board. Four employees testified about the managers' activities respecting that notice. Kegin said Manager Richardson called his attention to it the day it was posted; "he told us we had received a notice that we wouldn't have to pay dues any longer and there had been a letter posted on the bulletin board." Howell testified that in early June Richardson passed his department and said "I could discontinue paying my dues if I wanted." When Griffin returned from an absence on June 8, Assistant Manager Hilsabeck said to her: "Are you going to enjoy paying union dues for nothing?" She answered she would suit herself. Garry Kunkel testified as follows: Mr. Richardson came down one day and asked me if I had seen this notice on the bulletin board. I said yes, I had And he said, "Well, do you understand what it means?" I said, "Well, yes, I believe I do." And he said, "Well, are you going to do anything about it?" I said, "Well, I don't believe I will right now, I believe I will ride along with the Union a week or two and see what they do." And he said, "Well, you are prounion, then?" I said, "Well, I guess I am." And he said, "Well, so long it's been nice knowing you." '5 Among the signatures obtained by Miller were those of Rice and Pharis, department managers ; because the fashion manager later told Miller these two women were not eligible to join in such activity, Miller struck their names from her petition. The record does not support the General Counsel's contention, disputed by the Respondent, that Rice and Pharis are supervisors as defined in the Act 1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On this record , these were fully credible witnesses . Hilsabeck said he did not recall talking to Griffin, and then added "I might have expressed my opinion" by asking her how she liked paying dues for nothing. He also testified he told some employees: "That I thought that the contract was probably not worth their $3 that they paid for it, or whatever it is. That was my opinion." Store Manager Richardson also admitted he talked to employees about the notice. His version of his chat with Kunkel is: I asked him if he had read the letter that was posted on the bulletin board ... he didn't reply to my question ... I repeated the question . He said no .... I said, "are you going to read it?" ... No response . . . No, he turned his back to me . . . I said, "this is company property, you are on company time, this is a company letter and company bulletin , it is to your benefit to read it . You will read it." Any variance between the testimony of the managers and these employees must be resolved against the managers because, in addition to their admissions here set out, their total testimony reveals reversals in factual statements in important facts, and consistent repeated evasions and deliberate equivocations. Richardson testified flatly that there was a no-solicitation rule in effect in the store; he did not recall having announced this fact to the employees at any meeting. He also said that sometime in May he personally warned Union Steward Griffin that there was to be no solicitation in the store during working hours, that such activities must be carried on only on her own time. He then explained he did this because he had learned that the union secretary, Woodbury, had come to town and that there had been a union meeting at Griffin's house the night before, and "I [Richardson] didn't want him to conduct any of their union business in the store." He also admitted there had been no union activity in the store to provoke the warning. The record also shows clearly, in the testimony of the assistant manager, that both managers knew of West's activities in soliciting employee signatures while he was doing it in the store. A number of employees reported it to Hilsabeck, and "there was gossip around the store then going about 2 miles a minute." He discussed it with Richardson. There is no indication that management took any steps to stop all this. The decertification petition was filed on June 12 and on July 17 the Respondent refused to bargain further. El Dorado, Kansas: Rowan, a visiting official , gave the benefits speech at a hotel, where the approximately 35 employees were invited for breakfast as guests of the Company. The store manager, Doyle, had learned of the benefits program in a letter received in April, which also advised him that they would be instituted in nonunion stores on June 1. Earl Long, the employee who later became the decertification peti- tioner, had also learned these facts at a Kansas City business meeting, and he spoke of this matter several times with the manager before Rowan arrived. On one occasion Long had said to the manager: "How in hell do you get out of this thing?", and the manager answered "Resign." Long then added "it didn't seem fair that because of four or five or six people belonging to the Union that the rest of the store would be penalized on the company benefits." Long also told the manager at that time he would circulate a petition. On still another occasion before the Rowan speech, Long again told the manager he was "going to get up a petition or pass a petition." At the meeting where Rowan gave the benefit speech, Long asked "would we receive benefits immediately if we didn't have the Union or if we had the union con- tract agreed to," and Rowan replied "yes." When Rowan finished his speech, Long, still at the hotel, asked him how he could go about getting out of the Union. Long first testified that Rowan said nothing more than "that's your business." Later he reversed himself and said that Rowan had also told him perhaps the time had expired for filing a petition, and then gave Long the Labor Board's address, the necessary phrasing for a signature petition, all from certain papers he had in his briefcase, pre- sumably the decertification brochure prepared in the Company's main office for this purpose. On May 28, Long circulated a petition calling for a union election and obtained four signatures, believing that only union members were eligible to sign. It was returned as insufficient. He showed it to Manager Doyle, who just "looked at it ... and never said anything." Long then circulated a second petition on June 7 and obtained 21 signatures. Three employees testified, without contradiction, that Long solicited them while they were at work; Long said he "supposed" he did this while he or other employees were working. Long filed a decertification petition on June 17 and on July 17 the Company refused to bargain further. Pueblo, Colorado: The local union contract at this location was due to expire on February 15, 1964. On the morning of June 15, 1963 , the benefits speech was given by Coyle Davis, a district manager, who had the decertification brochure with him at MONTGOMERY WARD AND CO., INCORPORATED 1221 the time. He recalled that about three employees during the speech, and about three immediately after it, asked him how they could get rid of the Union. He said the employees wanted to know what procedures to follow, what showing of interest was required, what language to use on a signature petition, where the Board's office was. As to the Board's address, Davis testified that he had given it "verbally" to the manager, and that he told the employees the manager had it; he denied having told any employees what words to use on the signature petition, saying only to them "the Labor Relations Board could furnish them that information"; as to other instructions sought, he said only that he told the employees "the information could be furnished to them if they so desired." Carpenter is manager of the tire department, two blocks away from the main retail store. He said that by 10 o'clock on the morning of June 15, 45 minutes after Davis completed his benefit speech, he had already started obtaining signatures on an antiunion petition in the tire shop; the wording at it stop reads: "We the undersigned no longer desire the Union to represent us." This is precisely the language appearing on the decertification brochure Davis had brought to Pueblo with him. Carpenter was sure the wording had all been written before a single name was placed on the sheet. By 11 a.m. he had left the tire depart- ment and was in the main store soliciting more signatures. He obtained 40 names on Saturday 15, and 22 more on the 17th and 18th. He said the signatures were for the most part obtained in the store or tire shop while the employees were "at work," and that for this purpose he visited the main store several times. To explain the source of the heading language on his signature sheet, Carpenter claimed, at the hearing, it came "just from legal papers I have seen in my life ... I have been served them personally in my life ... I would just ... just thought them up." He mailed the signature sheets to "Mr. Clyde F. Wears, 17th and Champa St., Denver 2, Colorado," on June 18. He said he overheard another employee mention this as the Board's address. The post office was unable to deliver the letter. The store manager, McArthur, was also called as a witness by the General Counsel. He started by contradicting Carpenter, saying that at Carpenter's request on June 18 he had given him the Board's address from a "piece of paper" that had long been in the manager's office. He added that several days later Carpenter came back to his office with the returned envelope and asked: "is there an error so far as the address of the NLRB in Denver is concerned?" In his second version of this conversation, while under cross-examination , McArthur said that when Carpenter came to his office he said: "This letter has been returned. What do I do with it now?" The manager answered: "I will see that it gets there correctly." Carpenter then left the office, and, according to McArthur, "didn't say anything." The manager put the letter in his pocket and went about his business. Later that day he drove Davis and Sullivan, another company official, to Colorado Springs to catch a plane. After leaving Sullivan, McArthur and Davis went to a hotel where they borrowed a typewriter and, using a corrected Board address from Davis' briefcase, typed a new envelope for the signature sheet. They tried the post office and found it closed; the next day McArthur gave the new envelope to Carpenter who himself posted it. As witnesses, Davis, McArthur, and Carpenter were clearly hostile and evasive; their testimony in its entirety, together with other objective evidence, reveals a con- certed determination to hide entirely, or greatly minimize management's assistance and participation in the decertification movement, and the use, at the critical time, of the decertification brochure which Davis brought with him to Pueblo. Davis said he did not show the document to the store manager or to any employee. He said he gave McArthur the address of the Board's Denver office verbally, he could not remember where, when, or how this came about. McArthur spoke of an old slip of paper he long had had in his file. Yet Carpenter's first letter, mailed 3 days after Davis gave his speech, was returned for insufficient address because on its face it bears the address exactly as it appears in the decertification brochure, and the brochure was prepared in Chicago for the very purpose of supplying assistance that might be requested by employees of the speech givers in consequence of their talk.ls 19 The error in the Board address as set out in the decertification brochure and as repeated exactly in Carpenter's first letter was that instead of naming the Board as ad- dressee it named the Regional Director personally, and it identified only a street inter- section , without identifying any particular building at all. The correct address, as finally used by Davis, Is: National Labor Relations Board 699 Railway Exchange Building 17th and Champs Street Denver 2, Colorado 1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employees asked Davis what language to use on a signature sheet; he denied giving it to them . But within an hour of the inquiry to him, it had been written in the exact words of the brochure. Davis testified that all he told the employees when they asked diversified questions directed premisely to the information set out there , all he said was they could have the information if they wished. In the light of the circumstances of that moment, Davis' testimony must be viewed as a planned and deliberate incoherence . He cannot be believed. McArthur testified that he read from an old slip of paper , on which nothing else appeared, to give Carpenter the Board 's address . But his affidavit, dated September 9, says: "I got from my file the memo from Mr. Scheidt which contained the address of the NLRB office in Denver and Carpenter copied it from this." On this record this was a plain sworn admission against interest . McArthur lied on the witness stand without restraint. Carpenter's explanation of how the language he used chanced to match that in Davis' decertification brochure needs little comment and of its own weight serves to discredit him completely too. The finding is clearly compelled, that Davis and the store manager advised Carpenter at every turn on how to carry the decertification activities through. These were the sort of activities that here, as well as at other cities, later combined to form the basis of the Company's refusal to bargain with the Union. The behavior of management representatives on the witness stand must be evaluated against the issue of the case- was the Company acting in bad faith ? With this in mind, the evidence received in Pueblo warrants more than the minimum finding that Davis and McArthur answered questions put by employees. Had McArthur been neutral in this business Carpenter would not have brought the problem of his misaddressed letter to him with the simple inquiry "What do I do now?" and the manager would have done something less than simply take over and relieve the employee of any further responsibility. If Carpenter just left the office at that point with not another word-as the manager insisted-it could only mean his understanding was that, as a minimum , this was a joint effort of the Company and some employees. The proof may be oblique-as it always is when revealed by lies-but it is no less indicative of enthusiastic encouragement and stimu- lation of the decertification sentiment in the employees by the Respondent. McArthur also said there was in effect a rule against solicitation on company time. Carpenter testified: "I had an idea it wasn't right on company time." The manager had reason to believe Carpenter was doing all this during working hours. The day after Davis' speech , while Carpenter was so engaged in the store , two local union agents complained to the manager about it, and asked for equal time to combat it. McArthur refused them such permission and went to check on Carpenter ; all he did was walk to the tire shop two blocks away, and when he saw Carpenter working said nothing to him and was satisfied. There are about 75 employees all told in the store; Carpenter obtained 62 signatures Can there be any doubt the manager knew, and approved of his activities despite the no-solicitation rule he enforced against the union men9 In due course Carpenter received a formal decertification petition form from the Board's office and filed it on June 26. In its letter dated July 17 the Respondent told the Union it would no longer bargain for this location . The refusal was repeated in February 1964 when the local contract expired. Lalunta. Colorado: The benefits speech here was also given by Coyle Davis, on May 22 There is no evidence concerning any decertification movement. A contract with Retail Clerks Local 454 expired on June 1, 1963, and, apparently following a merger of locals, a new contract was signed for this store with Retail Clerks Local 7 on January 22, 1964. In July Store Manager Barnhart received a telegram from the Chicago main office announcing that the emnloyees at the Ponca City, Oklahoma, store had voted in a Board election to decertify their local union " 100 percent." He showed it around to the employees, asked a number of them to initial it, and then, as instructed from Chi- cago, posted it on the bulletin board where it remained several weeks. A short time later a second telegram arrived stating that the emnloyees at the Las Vegas, New Mexico, store had also voted to decertify the Retail Clerks. Again the manager asked employees to sign it and then posted it. Denying that he asked employees to sign the telegrams, the manager admitted he asked them to read the messages , that initials were put on them, and that they were posted. He said only that employees initialed "most items." or "any literature" that arrives in the store. I credit employee Avcock, who detailed the manager's request that employees initial the telegrams. The General Counsel also offered the testimony of McCombs , an employee. to the effect that Manager Barnhart spoke to him a number of times in December 1963 about the union and tried to persuade him to start a movement to remove the Retail Clerks as bargaining agent. McCombs quoted Barnhart as saying that the Company "would MONTGOMERY WARD AND CO., INCORPORATED 1223 take care" of him if he "handled" this matter correctly, that McCombs should help "break the Union," and that he wondered how many employees would sign an anti- union petition in return for a $5 raise. Barnhart expressly denied all these statements, while admitting he had been fairly intimate with McCombs socially and even spoke of the Union with him on occasion. Viewed in its totality, and against the manager's denials. McCombs' testimony does not support an affirmative finding that the alleged improper statements were made to him. He said that at every turn he rejected the manager's advances, yet a few months later was placed in a management-trainee pro- gram aimed at advancement in the Company. He was extremely uncertain as to dates and vague on many details of these conversations. More important, he seemed to indicate that the suggested $5 bribe talk came in June; however, in his July 10 affi- davit to a Board investigator, he made no mention of such an incident. Had it really occurred, it is highly unlikely McCombs, seemingly a man of calm composure, would have failed to speak of it. A lamosa, Colorado: On May 24 Coyle Davis gave the benefits speech here. On June 8 Litten and Koonce, two employees, circulated a signature sheet against union representation. Litten started soliciting names at about 4 p.m. and by 5:30, when she went home, she and Koonce had obtained 20 names. Both she and Koonce testified they obtained some of the signatures in the store, "upstairs and downstairs." That same evening, with the signatures ready, Litten asked Store Manager Wagner for the Board's address. She testified he told her to send it to "Clyde Waers, 17th and Champa St., Denver." Waers is the Board's Regional Director in Denver, and, as it turned out, this letter never reached its destination because the address was not sufficient, the pre- cise inadequacy of address that had caused the decertification signature sheet to be returned to employee Carpenter at Pueblo Litten was most positive Wagner gave her Waer's name. The manager insisted in his testimony he never told her the man's name Necessarily the error in the address again resulted from the mistake appearing in the information sent out in the decertification brochure which had been distributed from Chicago. It follows once again, as it must, that Manager Wagner at this location set out to deny what he had done. The specific question of whether or not Wagner gave Litten Waers' name is not of great significance in itself, but the fact that the manager lied from the witness stand on this point, again indicates forcefully that like other store managers called as adverse witnesses by the General Counsel, he too was determined to conceal the extent of man- agement's activities in these decertification movements. Two days later, on June 10, a prounion petition was started at a local union meeting, and the next morning there was some activity in the store toward obtaining additional signatures on it. Litten reported this to the manager immediately and by 9 a.m. or so, according to the testimony of Nelson, an employee who did some of the soliciting, Wagner came to her and said. "Do you have the petition? ... that petition is not to be circulated in the store. You either stay in your department, or else ... my friends are not circulating the petition." Wagner said he questioned Bradshaw, another employee, about that petition, but denied having mentioned it at all to Nelson. I believe Nelson, for Wagner was not a credible witness. He specified that he first learned of Litten's decertification activities when she asked him for an address on June 8, that he then told her not to carry on such activities on company time, and that the two of them spoke of nothing else. But the prounion sheet appeared in the store on June It, and Wagner also said this was a week after Litten had first spoken to him. With Wagner having lied about his initial talk with Litten, and with it now appearing from his own testimony that he spoke to her before she took any steps at all-the question suggests itself- what else did he tell her to do? He said that during their first talk he learned of her intent to circulate a petition. To what extent did he know of and approve of her solicitation activities during working hours? A few days after June 8 a telegram was received from Chicago announcing the results of the decertification election-adverse to the Union-which took place on June 6 at Ponca City, Oklahoma; Wagner posted it on the bulletin board A week later a second telegram arrived, informing the store of the Union's loss in the Las Vegas election. On June 24 Litten and Koonce circulated a second signature sheet, to replace the lost one, again obtaining 20 names in a single day. Her decertification petition was filed in Denver in June, and before mailing it she conferred with the store manager, who assisted her in its preparation by supplying the precise name of the Union, and the unit description, among other things. The decertification petition was filed on June 26 and on July 17 the Respondent refused to bargain further. Las Vegas, New Mexico: Coyle Davis, the district manager who gave the benefits speech at Pueblo, LaJunta and Alamosa, also explained the new benefits here on May 23; he finished talking shortly after 9 a.m. By 10:30 that morning he, the store 1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manager and the assistant store manager were in conversation at the tire shop, half a block away from the main store, with Clifford Babbitt, the tire department manager. There was talk about the benefits Davis had just explained; in the conversation Babbitt said to Davis: I didn't think it was quite fair to our store to be jeopardized for the nonpartici- pation in the improvements in the employees' benefits which were proposed, because we were union, and especially, I didn't think we were to be jeopardized, those of us who were nonunion. Babbitt testified that Davis replied: "Don't you think that most of the employees would rather that the Union didn't represent them now?" Babbitt personally wrote out an antiunion petition and the next day started to seek signatures ; he obtained 24 names during that day, some in the morning and some dur- ing the afternoon. He solicited almost all these signatures in the store or tire shop, some while the employees were "going to lunch." There were then 30 employees all told at this location. On May 31 he filed a decertification petition. Babbitt said he wrote the phrasing for his signature petition after speaking with Davis. He testified he was assisted in composing its wording by employee Scott who had sometime in 1962 prepared another such petition, and that he had "copied" from her old one. Babbitt denied having also discussed the phrasing with Davis or having made any mention of a petition to him. But Babbitt also said that while the men were standing near the tire shop that same day, Zink, the assistant store manager, told him not to circulate the petition during working hours. He did not explain why Zink should say this if there had been no talk about any petition. Davis testified that when, during his speech on the 23rd, employees asked him why they were not enjoying the benefits, he did not respond to them "particularly." He also recalled that later Babbitt did say "he thought it was unfair they [the benefits] couldn't be installed, especially to those that weren't union members." Davis did not recall saying the employees did not want the Union. He did recall, contrary to Babbitt, that the latter said he would like to circulate a petition for an election. To all this, according to Davis, he said nothing: "I just walked away." Scott also testified. She swore she had given Babbitt the copy of another antiunion signature sheet she had prepared and circulated a year earlier and that he had used the same wording in 1963 She then identified the original of that petition, produced by the General Counsel. There is no resemblance whatever between the phrasing of her old petition and Babbitt's. Instead his petition, also in evidence, sets out ver- batim, the 23-word phrase written in the Company's decertification brochure, which Davis said he had also brought to Las Vegas with him and which he had while Bab- bitt talked to him at the tire shop immediately after his speech. This was the second location in this hearing in which Davis gave incredible and therefore false testimony. The conceded purpose of the decertification brochure he had with him was for use in exactly the situation at the tire shop that day. Coupled with his testimony at other locations, his statement that at Las Vegas he simply refused to talk, or just walked away when the subject of decertification arose, rings hollow. I find he did tell Babbitt the employees would prefer not to have a union now. And again, the exact likeness between the 23 words in Babbitt's petition and the language of the brochure compels a finding that management assisted him in his decertification activities. With all this it requires little more to infer that when, the next day, Babbitt obtained signatures from 24 of the approximately 30 total employ- ees, at least 12 of them in the store, not his regular work station, management was aware of his activities albeit contrary to company rules. On June 21 a Board-conducted election was held pursuant to the petition filed. The day before, June 20, Davis returned to Las Vegas accompanied by Sullivan, an Assist- ant Regional Director. The employees were gathered before store hours and these men spoke to them at length to explain the imminent election; the employees were paid for time spent at this meeting. Sullivan detailed the mechanics of the election. Davis then read a 10-page statement, substantial portions of which were devoted to reminding the employees of the new benefits which the Company wished to give them and which had been offered to the Union. Davis stressed the fact that the employees stood to gain by these benefits, that it was the Company which was offering them, and that at all stores not represented by the Retail Clerks the benefits had already been in effect. As an unmistakable implication arising from the circumstances of the moment and the simple statement that it was in nonunion stores that the benefits quickly went into effect, Davis three times found occasion to remind the employees, although obliquely, that if the Union lost tomorrow the benefits would come to Las Vegas too, with little delay. "I shall review with each one of you after this meeting what your basic salary will be when payroll conversion is installed in this store, whether it be after tomorrow or whether it be in the future if and when the Union agrees to the payroll conversion plan." "I shall assume , if after tomorrow's election, MONTGOMERY WARD AND CO., INCORPORATED 1225 the store becomes non-union, that all benefits that were presented to you a couple of weeks ago could be installed in this store within a reasonable amount of time. "As I stated earlier, I assume you will all be entitled to benefits if the store remains union if and when the Company and Union negotiate the contract or, also, I assume you will be entitled to those benefits if you so desire after tomorrow's election if the store is nonunion anymore, within a reasonable amount of time." Davis said he left the store by noon on June 20. Before leaving he spoke individu- ally with "most all" of the employees in the manager's office. At first Davis' testimony was that he called only those who had asked questions during his speech, or only those who themselves asked to come to see him. Towards the end he reversed his testimony and conceded he had all the selling employees come to the office pursuant to a sys- tematic call-in-plan whereby each one who left passed the word to another who then left work and proceeded to the private office. Sullivan, and either the store manager or assistant store manager were in the office with Davis while he spoke to each employee. Davis said that his purpose was to explain more precisely to these people how the proposed changes in their employment conditions would affect each individually. I credit the testimony of Knight, at that time an employee, that when he was called to the office, among other things Davis said: "When the store was under one master or all the store was serving one master rather than two, at that time we would get the benefits." Davis denied having spoken to Knight at all; I do not believe him. The Union lost the election on June 21, and filed objections based on Davis' speech to the employees the day before. On about July 1 the Respondent placed the benefits plan in effect in every detail, including the selling employees' conversion plan. In January the Regional Director found merit in the Union's objections; he also dismissed the decertification petition because of the pending unfair labor practice charges. No demand for bargaining was made by the Union here in 1963 after the May petition had been filed, and the Respondent's Labor Relations Director testified it was his intention not to bargain during that period. In February, after the petition had been dismissed, the local union demanded recognition; the Respondent refused. San Luis Obispo, California: The benefits speech was given on May 23. Ten or twelve days later Paul Cope, the appliance department manager, circulated a decerti- fication signature sheet; after he had obtained four or five names on it, some other employee destroyed it.17 About June 11 the manager received a notice from the Company's Regional Director in Oakland, California, announcing that all full-time employees in the western region stores would regularly change to a 5-day, 40-hour week, but in any store where there was a union, the change would not be made until negotiations were completed. The store manager posted this notice on the bulletin board when he received it. On July 11 Cope circulated a second antiunion signature sheet and in that 1 day successfully solicited 15 names; he obtained all of the signatures while the employees were at work on the company premises, including the clerical office near that of the manager and in the warehouse, 6 blocks from the retail store Assistant Manager Griffin knew Cope was doing this; he said he saw the petition being passed around in the warehouse and knew it concerned the Union. Cope testified that he stopped soliciting signatures once he had obtained names from 30 percent of the store employees. When asked he could give no coherent expla- nation of why he chose 30 percent as a stopping point, why he decided to have the date added to each name, or where he obtained the name of the Los Angeles Regional Director of the Board when he mailed the petition. As a witness he was obviously withholding information. This was 1 of the 26 locations where in late August the Company held its own employee elections; most of the employees cast blank ballots. When the election was over, according to Cope's testimony, he went into the manager's office, where Pusch, the visiting company man who had run the election, and both store managers were, and asked what he should do with the decertification petition; one of the men replied: "Let it go through." Manager Griffin testified he recalled Cope coming into his office at that time while Pusch was discussing the results of the election with him. Accord- to him, Cope just entered the room, stood a few minutes, said not a word and walked out. In the circumstances this was not credible testimony. Cope's version is repeated in his earlier affidavit. Employee Chumley 2 months later asked Cope why he did not withdraw the peti- tion, and Cope said: "He could not. It was in the hands of the company lawyer and it was company property." 17 Cope said he passed out this first sheet "about 2 weeks " before July 11, when he circulated a second , received in evidence. I credit Jerald Smith, an employee who testi- fied that the first was circulated only 10 or 12 days after May 23. 1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cope appears to have been a supervisor within the meaning of the Act at the time of these events, and it is so found. He trains new men; he interviewed Hansen and Roberts, outside salesmen in his department, and recommended favorably to the manager as to each before they were hired. He said that when the manager inter- views men "he sends them down to me to see whether I would approve of them." When Hansen was hired, the store manager spoke to him first and then sent him to Cope "to talk to him, see what I thought, whether he would be alright or not." Cope reported Hansen would do, and the store manager had Cope call Hansen in to work. Cope also said that when he was made appliance department manager the store manager told him he "could fire them if I recommended them to him to be fired ... it would have to be through him." The assistant manager told him at that time that he [Cope] "was in charge of the department and I was supposed to run it at my own discretion." It also appears he recommended discharge of one man who was not released. At the hearing both Cope and Assistant Manager Griffin constantly evaded direct answers and hedged their testimony with confusing phrases. Against the foregoing statements drawn from Cope, the following testimony by Griffin, elicited by Respondent's counsel, is of little weight- "Q. Did you ever tell Mr. Cope that he had the power to hire and fire? A. Never in those words, no." The petition was filed here on July 19 and the Respondent thereupon refused to bargain further. Merced, California- Hughes, assistant personnel director, gave the benefits speech here on Friday, May 24, to the total of about 43 employees in a hotel. As he spoke employee Hermis asked was there any way that the employees "could get rid of the Union"; he replied that he would talk to her about it later. The next day, Saturday, Cecelia Quinn, the credit manager, asked Store Manager Keating: "How can we get the benefits and get rid of the Union"; he replied he had the forms and gave her the decertification brochure as a guide. Later that same day John Greco also went to the manager with a similar question. Keating's testimony is: "John Greco came up to my office and said, `We want to get rid of the Union,' and I said, `Somebody has already been in to see me,' and that was the end of the conversation." Keating also posted a company notice dated June 11, advising the employees that western region stores were going on a 5-day, 40-hour week, but not Merced, because it was repre- sented by a union. On Monday, May 27, Quinn circulated a signature petition, the heading copied verbatim from the decertification brochure, and obtained 19 names. She said she obtained all the names "in the alley behind the store," "during coffee breaks"; then she admitted some were solicited in the store itself. At least five of the signatures are those of clerks who worked in her department, the credit office adjacent to that of the store manager. Part of her job is to type letter for the manager, including person- nel letters and wage and promotion matters. She testified variously that that Monday, when she obtained all of the signatures, was her "day off," "we don't have any specific day off," "I have a month's vacation," "I was at work. I was there. I wasn't work- ing on my job. I was there." The manager knew of her activities that day. At the hearing he testified that no employee asked him should they sign the petition; his earlier affidavit to a Board agent says- "Some of the employees did come to you to ask about whether or not they should sign the petition but I told them it was their own decision and that I had nothing to do with it " 18 With this signature sheet for support, Quinn filed a decertification petition. The record evidence in total supports the General Counsel's contention that she was a supervisor within the meaning of the Act. She is the credit manager with six other employees in her department. Despite his attempts to minimize Quinn's authority, the store manager said "Her job is to see that the production of the people are at least partially up to par." A credit clerk testified, without contradition, that more than once Quinn gave her a day or half a day off. Quinn has been credit manager 27 years; in September 1962, on the occasion of her 25th anniversary as an employee, she was recognized at a dinner with the new title "Credit Sales Supervisor." She reviews and signs employee rating sheets in her department; on her own admission: "he [the manager] discusses it with me on merit raises." In an affidavit dated Sep- tember 24, 1963, she said "I am manager of the credit department and have seven employees under my direction . I do hire and fire the employees in the credit department-of course, I do discuss it with the manager first. I make effective recommendations regarding any of the employment conditions of the employees under my supervision " At the hearing she said she signed the statement because The affidavit was not made an exhibit ; a portion was read into the record, with the error apparently resulting from the reading. MONTGOMERY WARD AND CO., INCORPORATED 1227 she then believed it to be .true to the best of her knowledge , and then proceeded to deny the assertions directly. Most of her answers were deliberately evasive, antago- nistic and impertinent. In July Assistant Manager Shaw asked employee Timmer whether she "was union"; when she said yes, he said she "didn't have to pay . . . dues," and that he had a letter that "says that you don't have to pay your dues." He asked was she still paying dues, and she said yes; his reply this time was, still according to Timmer's uncontradicted testimony : "He told me that I was throwing my $5 00 a month away.... . A week after the May 24 speech Store Manager Keating showed employee Lucille Carlberg the printed booklets about the new benefits which the speaker had used in making the presentation at the hotel, and "he asked me who got me my last raise, whether it was the Union or Montgomery Wards " Still according to Carlberg, Keating then added "If it had not been for the Union we could have had more raises more often." The manager denied having said that but for the Union the employees would have received more raises, but he admitted: "I asked her when she got her last raise and I said, `Why do you think you got the last raise9' She said, `Well, I know that you gave it to me.' . . . I told her she automatically got a cost of living increase from the Union, but this particular raise that she got was much larger than what the Union was giving her." I credit Carlberg. The decertification petition was filed on June 5 and on July 17 the Respondent refused to bargain. Sacramento, California: The contract with the Local Union here expired on November 1, 1963. On May 24 and 25 Haggerty, an agent of the Company, gave the benefits speech several times; there are about 185 employees in the store. He had the decertification brochure with him and said that at a central office meeting, where he and other agents were briefed on how to give these speeches, he was told the brochure was for use of store managers. Haggerty had been furnished several copies of the brochure by the Company before starting to visit the stores, and he left a copy with the store manager here. During one of his talks at Sacramento a girl asked how "to be out from under the Union" He told her that for further information she should speak to the manager. In August employee Marzoff filed a decertification petition supported by a sig- nature sheet. One of the persons who signed was Raymond Skinner, manager of the toy department, who said he did so on the sidewalk at Marzoff's request while a dozen people were standing about discussing the petition. Skinner was a supervisor within the meaning of the Act. Department managers were expressly excluded from the current contract at this location; he was promoted to manager in about October 1962. He testified that "In 1962 I was sort of a super- visor of toys . . . I was called as a supervisor." He said all of this became official in the fall of 1963, but in January 1963 he formally withdrew from the Union, in writing, because he had been "promoted to Dept. manager." Department managers, according to the store personnel manager, appraise employees on rating sheets used for merit raises, are "responsible for the conduct of his employees and the general ability of them," direct employees, and have authority to recommend promotions, discipline, or discharge . During the summer season Skinner spends most of his time as a regular salesman in the automotive parts department, adjacent to the toys, and he asserted at the hearing that when toys are out of season, he does virtually nothing there. He also said, however, that he attends regular Saturday managers' meetings in the summertime also. The decertification petition was filed on August 5, the current contract expired on November 1, and on November 20 the Respondent refused to bargain. Chico, California: Retail Clerk's Local 17 was certified by the Board for Chico on September 21, 1962. Subsequent negotiations produced no agreement and this location was merged into the group bargaining which later took place at San Francisco in the spring and summer of 1963. On May 21 Haggerty gave the benefits speech; at the end an employee turned to the entire group and asked: "Well, how do we get rid of the Union." The next day employee George Bradt called a meeting of employees at a hotel to advocate rejection of the Union. Word of the meeting was passed among the employees through the store switchboard. On the 23d he started to circulate an antiunion signature sheet and by the end of May 24 had obtained 32 names from the approximately 50 employees of the store. Bradt solicited all of the signatures on the store premises while the employees were at work. The first six or seven names were obtained on the mezzanine floor, where the store manager and the operating managers have their offices. Bradt also said both the manager and the merchandising manager knew what he was doing because "I made no secret of it. 1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I took the petition around to various ones and asked them if they wanted to sign it ... I took it all over the store." Store Manager Leverenz was examined by the General Counsel on whether he gave Bradt any help or encouragement toward the decertification movement. Per- sistently and repeatedly he claimed he could not recall any questions put to him by Bradt or by any other employees on the subject of the new benefits or decertification; he evaded all interrogation with saying "probably" some questions were asked, "maybe" he had made certain statements, he "thought" he had said this or that. In the midst of his continuing denials, he admitted having called Sweetow-a com- pany official in the Oakland Regional Office-to ask what he should tell Bradt, who had asked him a question and was sitting in his office, and that Sweetow gave him the NLRB's office address and advised him to tell Bradt to go to the Board. Finally, after continued pressure by the General Counsel, and with his earlier affidavit placed before him, the manager admitted Bradt had asked him how to go about getting the benefits and that his reply had been: "He would have to wait until the union negotiations were completed." Leverenz continued to insist he could not recall having expressed regret to the employees that their enjoyment of the benefits was delayed. Finally the General Counsel proved, on the record, that in an affidavit signed on August 1, 1963, as part of his recollection of the events while Haggerty was giving the benefits speech, Leverenz stated. "As I recall, I did make the state- ment that it was too bad that we couldn't share in the employee benefit plans until something is worked out with the Union." Further, Leverenz was recalled as a witness for the Respondent towards the close of the hearing in Chico; now he con- ceded candidly, in response to a question by Respondent's counsel, that Bradt had also asked him outright how the employees could get rid of the Union. The testimony of employee Tina Roberts is that during May 22, the manager showed her the benefits booklet which Haggerty had brought to the store and said to her in the office: "Tina, doesn't this look pretty good ... unfortunately we can't talk about it because unfortunately we are with the Union." 19 On June 3 Bradt filed a decertification petition; apparently because the Board certificate was less than 9 months old, the petition was either dismissed or with- drawn. On September 23 he filed a second petition, and the Respondent thereafter refused to bargain. Pittsburg, California: The local union contract here expired on May 4, 1964; the benefits speech was given on May 21. 1963. On June 24 and 25, Alfred Johnson, the service department manager, circulated a decertification signature sheet; he and Ostrom, the furniture and appliance manager, obtained 12 signatures from the 32 employees in the store. Before doing this, Johnson asked help from the store man- ager, who told him to prepare a petition and obtain one-third of the employees' signa- tures. Johnson then obtained the Board's office address from the manager and mailed the signature sheet to the Board. Ostrom had asked the manager on the day after the benefits speech whether nonunion members could receive the benefits also and was told it was all or none. Johnson received decertification petition forms from the Labor Board, but it does not appear that any petition was in fact filed at this time-the contract here still having about a year to run. On about August 5, Ostrom did file a petition; before doing so he went to the store manager for assistance and was given certain forms to use as guide-presumably, those attached to the Company's decertification brochure as illustrative examples. The national settlement reached in August in Chicago was ratified by the Pittsburg store employees later that month, and shortly thereafter, with the Union agreeing, the substantive provisions were put in effect on August 29 and September 5, except for the union-security clause. Ostrom said he withdrew his petition when he was satisfied the new benefits had been placed in effect. If Ostrom, who is manager of the furniture and appliance department, is not a supervisor within the meaning of the Act, he borders very close to it. There are always one or two other employees in his department with him, and he directs their work. When people are hired, the store manager first interviews them and then sends them to Ostrom, who inquires into their knowledge and education ". . . to figure out whether they would be a good salesman." If Ostrom is satisfied, he tells the manager he approves. He asked the manager to discharge one of the salesmen for incompetence; when Ostrom returned from vacation shortly thereafter, the man had been released. 19Manager Leverenz having discredited himself as a witness , there is no substantial reason for rejecting this uncontradicted testimony of Roberts , even though in her earlier affidavit her recollection of the manager's talk does not literally mention the word union. MONTGOMERY WARD AND CO., INCORPORATED 1229 There was no literal refusal to bargain at this location . When the last contract expired in May of 1964 a new one was made. Richmond, California: Local Union 1179 was certified by the Board at Richmond on July 31, 1962. Subsequent negotiations produced no contract and this store, too, was included in the group bargaining at San Francisco in the spring of 1963. Assistant Regional Personnel Director Hughes went to Richmond and made the benefits presentation to the 375 employees in a series of speeches over 3 days- May 21 , 22, and 23. In preparation for the speeches , which he gave in several stores, he had received three or four copies of the decertification brochure ; its purpose, he said, was to give guidance to store managers "in case" employees asked about decertification . He had a copy with him at Richmond. When he spoke, several employees asked why they could not receive the benefits, and how they could get rid of the Union. Hughes testified that all he told them was that they should go to the Board . One of the employees , who, immediately after Hughes started giving his speeches , decided to take steps to remove the Union from the store, was Vallona Patterson, assistant manager of the fashion department. There are 20 to 30 employees in this department and part of Patterson 's duties are to interview employment applicants ; she also substitutes for the department man- ager-a conceded supervisor-whenever the latter is absent or on vacation. On May 22 Patterson had her husband telephone the Board 's Regional Office for infor- mation about decertification petitions . A letter in reply was dispatched from that office the same day ; it was placed in evidence. On July 23, 1 week before expiration of the certification year, Patterson prepared a signature sheet to support a petition against the Union . She wrote its heading language and gave it to Bakalian, assistant manager of the tire department, who pro- ceeded, in the next few days, to solicit 126 names ; by July 30 there were 180 sig- natures on the document . Bakalian said he obtained most of the signatures at the snackbar, and some from employees while they were working. Patterson herself signed while on her job. Bakalian also testified he filled in the decertification petition at home, using the manager 's office typewriter which he borrowed for this purpose. Store Manager Warren denied any employees spoke to him on the question of how to obtain the benefits explained by Hughes ; he said such questions would normally go to any of his six assistants , all regular supervisors , and that he was sure the staff had received such questions . He also testified he gave no information to any of these on what they should respond. The General Counsel also called Store Personnel Manager Cowan as a witness; she was present at 15 of the separate speeches Hughes gave in this store. She said she had "a vague remembrance " of having seen the decertification brochure, but explicitly denied ever having spoken to Patterson or Bakahan about the benefits or the subject of decertification . Patterson denied, as a witness , that she spoke at any time to any company representative concerning what language to use on the signature sheet. She swore she obtained the wording from the Board letter sent to her hus- band. She lied, for she had the letter before her at that moment and it contains nothing remotely resembling such phrasing. The signature sheet, in Patterson's handwriting, contains the following language: "We, the undersigned , desire an election to be held to determine whether the Union represents the majority of the employees in the store," is also sufficient. Referring to this step in decertification proceedings, the Company's brochure, which Hughes had brought to the Richmond store and which the personnel manager "vaguely" remembered having seen, reads as follows: Usually, it is in a form of a statement appearing at the top of a blank piece of paper which states: "We , the undersigned , no longer desire the Union to represent us." Other similar language which expresses a desire to have an election is also sufficient . Thusly, the statement, "we, the undersigned , desire an election to be held to determine whether the Union represents the majority of the employees in the store" is also sufficient. Several inescapable conclusions and inferences must be drawn from the foregoing evidence . Someone on behalf of the Respondent told Patterson how to proceed; the words "is also sufficient" on her petition preclude any other possibility . With the witnesses denying she ever asked for help , the suspicion arises that this came about by management going to her in the first instance . The denials of the company repre- sentatives as a group must be rejected ; a judicial proceeding is not a shell game-now you see it, now you don't. Moreover, the clear intent to conceal management's role 1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the decertification movement suggests that the real extent of its assistance to Patterson and Bakalian may have been much more A minimum inference is that the companywide policy against solicitation of this kind during working hours, of which Labor Relations Director Scheidt spoke as the defense witness towards the close of the case, was knowingly overlooked while Bakalian, to the manager's knowledge, obtained over 125 signatures in the store itself in so short a time. An equally disturbing and perhaps more significant deceit is suggested in Patter- son's behavior the moment she appeared on the witness stand. The first pertinent question the General Counsel asked her, as he handed the witness the top sheet of the signature petition, was whether she had ever seen it before . She replied: "Yes, you showed that to me the other night and I wrote it." Like all other witnesses Patterson had been excluded from the hearing room before being called , yet she answered the heart question of the intended examination before it was asked, and with a deliberate lie. Her total testimony leaves no doubt that by the phrase "I wrote it" she meant she had herself conceived the phrasing Was she coached in advance by someone who knew the pattern of evidence the General Counsel had been offering in the many cities where the hearing had already progressed? The decertification petition was filed here on August 1; on November 4 the Union demanded bargaining and on November 10 the Respondent refused. Ponca City, Oklahoma: The union contract in this city expired on June 1, 1963. In March, an employee, Don Behrend, circulated a petition to unseat the Union and obtained 18 signatures. He filed a decertification petition on March 19. A consent- election agreement was signed and the Regional Director conducted a regular election on June 6; the employees voted 21 to 11 against union representation. The Union filed objections and, after charges were filed in the present proceeding, the Regional Director dismissed the petition. Store Manager Cook helped Behrend to prepare the signature petition; he told the employee how to word the statement, gave him the Board's address, and said the petition should be mailed in before the contract expired in June. Behrend obtained 9 or 10 of the signatures during his working time, in various parts of the store. While he was doing this the manager asked "quite generally as to how it was going," and Behrend said "fine." The only witness called at this location was Behrend and the evidence is con- flicting as to when he learned about the Company's new benefit plan and the fact that union approval would be required at this store. He started by saying it was only after he had filed the petition, on March 19, that he first learned from Cook that the new benefits were to be given in nonunion stores and not where there was a union. He repeated several times that his first knowledge on the subject came from a Wichita meeting after March 19. It was then established that in his earlier affidavits, given in November 1963, Behrend stated- "I recall that during my March 9, discussion with Mr. Cook when he advised me on the wording for the petition, I was already aware that Montgomery Ward & Company had been consider- ing new or greater benefits in retirement, insurance and payroll and otherwise " Behrend then explained that he had become "aware" of the benefits because the store manager had told him. On May 23 Rowan visited this store and gave the usual benefits speech, using the same script that had served all other Retail Clerks locations. On June 5, the day before the scheduled Board election, Rowan returned to the store and delivered to the assembled employees a second prepared speech. He started by telling them the Union was an unnecessary financial burden upon them and generally urging them to vote against it He then reverted to the benefits speech he had given 2 weeks before, and again emphasized, more than once, the fact that at all stores where there was no union the benefits had already been put in effect. He also told them of the salary conversion plan that the Company was offering, and here again explained that so long as there was a union it remained subject to negotiations. During the 2-week period between Rowan's two speeches, the store manager dis- cussed a number of times with Behrend the question of how individual employees were likely to vote in the coming election He asked Behrend how he thought the employees would vote. Behrend testified that in these talks: "Mr. Cook stated that this would be a good thing to bring up, this thing about the benefits, which were going to go into effect and to tell them they would go into effect sooner in the nonunion stores than they would in the union stores . . . he told me if they under- stood this, chances are they would understand the situation better and vote against the Union." Behrend and Cook spoke of 5 or 10 particular employees, and then MONTGOMERY WARD AND CO., INCORPORATED 1231 Behrend, in the store during his work hours , conveyed this message as a selling point to the employees to persuade them to vote the Union out. Late in his testimony Behrend also recalled the conversation with Cook as follows: Q. What did he say in this regard? A. As has been previously stated this can be used as a talking point and he had hoped the people would understand that the Company was giving these benefits to its employees and that it was not the Union that was getting them for the employees. Consistent with Rowan's last speech, and with Store Manager Cook's message to the employees, the Respondent placed all the benefits in effect shortly after the June 6 election, which the Union lost. In late May, at one of the bargaining meetings, the Respondent announced it would no longer bargain for this location. Salisbury, Maryland: The union contract at this location expired on January 8, 1964. Early in May the company newspaper circulated in the store and the employ- ees learned the details of the benefits planned and the decision to put them in effect on June 1. Towards the end of May three employees attended a union meeting, and one of them-Lewllyn Hearn-asked the business agent in charge why the benefits were not being given the employees; the agent was unable to reply and answered he would inquire. On May 31 Hearn circulated a letter to the Local Union, calling upon it to explain why the employees were "being denied the right to participate in the new employee benefit program." She and Dean Magee obtained 39 signatures to this letter. Both the employees solicited signatures in the store while employees were at work. In August Magee filed a decertification petition with the Board. To support it he circulated a signature petition, again with Hearn's help, and successfully solicited 35 names. Hearn obtained one-third of these in the store, half while the employees were at work; Magee said he got half his names during working hours, some of them in the credit department. Before soliciting the signatures Magee asked Gallaher, the store manager, whether he objected; Gallaher said it was none of his business. The petition was dismissed as premature. Magee reported this fact to the store manager and in this conversation there was discussion of proper time for filing. Magee then circulated still another signature sheet, this one to support a decertifica- tion petition he filed in October; he obtained 35 names to this one. There was much talk about the new benefits among the employees, and the store manager discussed them at a personnel meeting of the employees late in May and, apparently, at subsequently weekly Friday meetings. He testified that he discussed what had been printed in the company newspaper. Carl Tankersley recalled that at one of these meetings the manager said "how would you like to have a third party come in, that is the only thing I can remember." Helen Foxwell testified that the manager had said ". . . he didn't like a third party telling him what to do. And that he would rather not have it. We could get along much better if we didn't, we could settle our disputes." Thomas DeVage testified that at one of these meetings the store manager said: . . something about why anybody in their right mind should pay $4 for dues, when anything they got was coming through the Company, the Company gave it to them." The store manager said employees had come to him to ask when the benefits would be received in the store. He also recalled having discussed, at a personnel meeting, the substance of a newspaper article concerning the benefits ". . . it was just stated when the Company and the Union got together, they would go into it"; he told the employees these were company benefits Pressed on whether he had said the Company preferred to deal directly rather than through a union, he said: "There could have been a word dropped here or there." It was almost impossible for the General Counsel to force a direct or coherent reply from Gallaher on this entire subject of what he told the employees during the summer of 1963. I credit the testimony of Tankersley, Foxwell, and DeVage. Tankersley also testified that sometime between August and October the manager told her "If I catch you talking while you are working with the union man, you will be fired." Oscar Holinger, a local union business agent, testified that during June the manager told him he could no longer check the employee timecards on the rack. He had done this before, and continued to do it thereafter Foxwell also said that at one of the personnel meetings the manager announced that ". . . he didn't want us to talk to him [union agent]. If he came into the store, not to. If he caught us talking to him, that we would be fired." And Magee, referring to her signature solicitation activities in the store, said that Gallaher never told her she could not do that. 1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The decertification petition was filed on October 24, and in January, after the last contract had expired, the Respondent refused to bargain. As to the remaining 10 retail store locations named in the complaint, the General Counsel offered no oral testimony. There was instead a stipulation of facts, together with documentary proof, set out on the record for each of these stores. The following statements of fact, therefore, rest upon agreement between the parties, and docu- ments admitted into evidence with no issue of authencity raised. Mount Vernon, Illinois: The benefits speech, including the standard union situa- tion introduction, was given between May 20 and 25. On August 16 the employees voted to ratify the settlement, reached nationally in Chicago, and the Union quickly advised the Company. It reiterated this information by letter of September 6, which also requested a copy of the agreement for execution. By letter dated September 13, the Company acknowledged the Union's communications and said that at all loca- tions where ratification had been voted, the store managers had already been instructed to place the substantive provision of the agreement in effect. The Com- pany advised the Union that there was a delay in working out the final contract language with high officials of the International. The Union agreed to having the substantive terms of the contract placed in effect, and this was done. On August 30, following the national settlement in Chicago, a notice from Chicago was posted in the store informing the employees that a new contract has been agreed to for this location, that it had not yet been executed, and that after it should be signed all employees would be obligated to join the Union; the notice twice stressed actual signing must occur before the obligation was imposed. The earlier contracts had only a maintenance of a membership union-security clause. This is the same notice that was posted elsewhere at about the same time following employees ratification. On September 3 a signature sheet to support a decertification petition was circulated, in part on the store premises, and 15 names obtained from the 38 employees in the store; it was sent to the Board's Regional Office on September 4. On November 4 employee Winninger filed a decertification petition. The Respondent never sent the contract to this Local Union, and in January 1964 it refused to bargain further. San Jose, California: The benefits speech was given by Hagen, a regional manager; while he spoke an employee asked "how employees could go about getting rid of the Union," and Hagen read portions of the decertification brochure and explained the procedures. He also said he would give the appropriate literature to the store man- ager and did leave the brochure with him. Between May 22 and 31, two antiunion sheets "were circulated to employees work- ing at the time"; the assistant store manager reported to the store manager that he had heard the petitions were being circulated. Thirty names out of 88 employees were obtained; some employees asked the manager should they sign and he answered they should decide for themselves. On June 3 a decertification petition was filed and on July 17 the Respondent refused to bargain. Madera, California: The benefits speech here was given on May 23. A signature sheet was circulated and 7 names out of 15 employees, were solicited on June 26; the next day a decertification petition was filed. On July 17 the Respondent refused to bargain further. Modesto, California: On May 24 the benefit speech was given in two sessions at a cafe, and between June 1 and 3 a signature sheet was circulated and 30 names obtained from the 62 employees in the store. A decertification petition was filed on June 4 and on July 17 the Respondent refused to bargain. Woodland, California: On May 25 the benefits speech was given and between May 25 and June 6 a signature petition was circulated and seven names obtained. The decertification petition was filed on June 7. On July 17 the Respondent refused to bargain further. Portland, Oregon: Two unions had been certified jointly as bargaining agents in this store: Teamsters Local 255 and Retail Clerks Local 1257, their single contract expired on June 1. The benefits speeches were given to the 108 employees on May 21 through 24. From June 7 to 11, 58 employees signed an antiunion signature petition and a decertification petition was filed on June 12. On July 17 the Respondent refused to bargain further. Baker, Oregon: The record does not show what collective bargaining there was in this location before the summer of 1963. Scheidt testified toward the end of the hearing that the Company had at one time recognized the Retail Clerks, after an attempted raid by the ILA. In June the Respondent filed a petition to test the majority strength of a Retail Clerks Local Union. While it was pending before the Board the Company held the usual election on August 27, and that union lost. The speech made to the employees before the balloting was exactly like that made at all MONTGOMERY WARD AND CO., INCORPORATED 1233 other elections on the west coast where identified Retail Clerks locals had in fact been recognized or certified. After the election the Respondent put in effect the new benefit program. Spokane, Washington: There are 120 employees here; on May 21 the benefits speech was given; between June 4 and 13, 40 employees signed an antiunion petition; on June 17 the decertification was filed. On July 17 the Respondent refused to bargain further. Longview, Washington: There are 100 employees here and the local contract expired on June 1. The benefits speeches were given May 21 to 25. Between July 6 and 15 42 employees signed an antiunion petition and a decertification petition was filed on August 14. The Respondent thereafter refused to bargain for this location. Anchorage, Alaska: The contract here also expired on June 1. The benefits speech was given in May, a signature petition was signed on June 1 by all four employees in the store, and a decertification petition filed on June 10. On July 17 the Respondent refused to bargain. 3. Bargaining meetings Beginning about 60 days before the June 1 expiration date of the vast majority of the contracts in effect, the parties bargained extensively over the terms of a new agreement. In the early stages of the negotiations there were regional meetings, each encompassing large geographical areas, with local, international, or council officials of the Union conferring with main office representatives of the Company. These being inconclusive, there followed, in July and August, centralized meetings in Washington and in Chicago, with the highest officials of both parties, eventually assisted by a representative of the United States Conciliation Service. Ultimate agree- ment was reached on August 7 on a settlement to be submitted for direct ratification by the employees of each store separately. The General Counsel introduced a certain amount of evidence, oral and docu- mentary, concerning these meetings. His purpose was (1) to establish the fact of outright refusal to bargain as to certain stores, decisions which were announced by the Respondent for the most part during the conference or in correspondence inci- dental to the negotiations, and (2) to show the asserted coherent and significant relationship between the Respondent's position vis-a-vis the Union at the very time it was engaging in certain conduct directly affecting the employees. The Respondent in turn introduced voluminous details, both as to bargaining conversations and writ- ten proposals and counterproposals, setting out the total picture of the bargaining. It also placed into evidence a full story of the intramanagement talks and decisions preceding these events and explaining the economic considerations which lead the Company to institute the so-called new look benefit program. Essentially the Respondent's justification for all of this evidence is the argument that as it was charged with a "refusal to bargain," proof that bargaining in fact did take place rebuts the basic theory of the complaint. In view of the real issues presented-and particularly of certain concessions made by the General Counsel both during the hearing and in his brief-much of this extended evidentiary matter need not be set out in substantial detail here. It is not claimed that the decision to alter insurance, retirement, savings and vacation benefits of the employees was motivated by any illegal purpose; indeed the record shows beyond question that the program resulted from purely economic factors. Nor is there any suggestion that as to those stores, about 40, which are not mentioned in the complaint, the Respondent failed in any respect to fulfill its statutory duty to bargain. The case is strictly limited to those 39 locations listed in the complaint. And as to the critical allegation that there did come a time when the Respondent refused to continue recognizing the Union, the parties do not disagree. The record shows explicitly, and the Company's labor relations director candidly admitting from the witness stand, that from certain dates forward he did not bargain although requested to continue doing so. The principal question is whether when he did refuse to negotiate further as to those stores, his decision to do so was grounded upon a good-faith doubt as to the Union's continued representative status. This being the basic issue, it is only necessary to refer to the bargaining negotiations to the extent required for understanding the real matters in dispute. The Respondent first advised the Union of its desire to institute the insurance, retirement, and stock purchase innovations-the so-called three giant steps-when its Labor Relations Director Scheidt visited Murray Plopper, vice president and assistant to International Union President Suffridge in Washington on January 10, 1963. Scheidt spoke at length on the details of the revised benefit program, of the 206-446-66-vol. 154-79 1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD internal upper level management changes that had taken place in the Company, of the economic reasons for wanting to take these steps. He also opened the question of the practical difficulties incident to bargaining for upwards of 80 separate store units represented by a large number of local unions. The Company is organized into separate geographic divisions for operational and administrative purposes, and the Union also has regional groups, with vice presidents supervising the activities of various locals through councils. In 1958, when the last agreement had been made- a 5-year contract with each of the stores then represented by the Retail Clerks- negotiations had been centrally conducted, with high union officials doing the prin- cipal bargaining and the resultant settlement then ratified by each store or local union unit before the separate contracts were signed. Scheidt suggested some such arrange- ment be used again, and he pleaded his limited staff personnel as a practical reason. Plopper did not reject the suggestion and promised to communicate the idea to his subordinates throughout the country and to keep Scheidt advised of developments. He also made clear the matter must ultimately rest with each local union's desires. The next month Scheidt was invited by the International Union president to speak at the Union's executive board annual meeting in Miami. He appeared there on February 24, before a group of approximately 25 of the highest union officials, and again discussed in detail the component elements of the proposed benefit revisions; Scheidt also detailed the Company's economic reasons for all this and how the over- all desire of the Company was to resolve the bargaining quickly so that it could place in effect these new benefits throughout the Company by June 1. In due course arrangements were made to discuss the respective contract demands in five separate grouping of stores, each a segment of the country, with the union committee consisting of the business agents or other executive officers of the various locals, together with a higher official, such as a vice president or the secretary of a regional council. Negotiations took place in Chicago, San Francisco, Portland, Pitts- burg, and Detroit. Speaking for the Company there were Hanley and Conhain, of the main office in Chicago, who participated in most of the meetings all over the country; locally there was Lloyd, in California, Lambert, on the east coast, and one or two others who also took part in negotiations from time to time. On many occasions, and especially the more significant meetings and all the really centralized or national talks which in July and August served to produce the eventual settlement, Scheidt, the top labor relations director, took charge and lead the bargaining for the Company. His counterpart on behalf of the Union was Murray Plopper, from Washington. Down-to-earth bargaining started with the California group in San Francisco on April 2; successive sessions were held there for 11 further meetings, through May 30. Many detailed written proposals were exchanged; there was comprehensive and repeated discussion of all the issues. From the start the Company explained the new benefit program as a major item it wanted incorporated in a new agreement. The Union suggested other types of changes in the existing insurance and retirement sys- tem; understandably the Company held firm on these matters, and persisted in having its way, for companywide uniformity in such matters as pensions and profit sharing, or stock-purchase arrangements, is virtually an economic dictate in any large com- pany. There were concessions on each side on minor items, adamant insistence on others. As the days went on the crux of disagreement was reduced to a short list of what the Union called "must" items; chief among these was a demand for an across-the-board raise during the first year of any new contract and a full union-ship clause. The Company held firm to its offer of only a selective individual group of merit raises in the first year, with an across-the-board raise only in subsequent years, and a limited union-security provision. During May bargaining sessions also were held in other regions. The Chicago group met five or six times in May. In Detroit negotiators met on May 9, 10, 21, and 22, and on June 4. There were like meeting in Pittsburgh and Philadelphia for the Eastern group, on May 7 and 15, and on June 5. For the northwestern region regular bargaining sessions took place in Portland, Oregon, on May 16 and 17, and on June 11, 12, 20, and 21. There is no evidence as to what was said or done at Portland, but judging from what took place in the other locations, it was regular discussions everywhere on the merits of the diversified proposals by each side. In every case the Company's spokes- man took pains at the outset to explain fully the new benefit plan proposals, with slides and written brochures setting out the complete picture. Written proposals, in detail, were submitted by the Union. These varied somewhat because they were the result of a regional centralized collation of the desired expression of the many local unions. In substance, however, the Union's demands were fairly uniform. The Company's proposal was standard everywhere. MONTGOMERY WARD AND CO., INCORPORATED 1235 There was much bickering among the witnesses as to who postponed the next meeting unreasonably, who insisted too strenuously on this item or that, who was delinquent in the duty to submit concrete proposals from time to time, who took a too high-handed position on certain matters, and even, impliedly, who evidenced a lack of responsibility in going forward with the bargaining, presumably, by failing to make significant concessions. But there is no contention by the General Counsel that any demands of the Company were in themselves illegal or outside the proper scope of collective-bargaining subjects, that the Respondent's representatives ever failed to consider and to discuss the Union's myriad contract proposals, that man- agement did not meet with the Union on request and at reasonable times, or that any conduct of the company negotiators in the course of the bargaining sessions that did take place in itself fell short of the dictates of the statute. Therefore, all this oral testimony respecting what occurred at the many meetings held adds nothing of significance, either to support the inference sought by the complaint of bad faith in the subsequent outright refusals to bargain, or to justify, if there can be justification on this record as a whole, the actions which management representatives took in their direct dealings with the employees, both while negotiations were taking place and after the final settlement had been reached in August. With the regional negotiations failing to produce agreement, and with most of the contracts having expired on June 1, the parties met again in Chicago on June 19 with top level officials trying to settle the matter for the entire country. Here Plopper gathered the principal spokesmen for the various councils of the International-the vice presidents who had led the negotiations in different cities-and the entire group met with Scheidt and his assistants. Despite an all-day session no agreement was reached. This same group on both sides tried again in Washington, at the office of the International, in a 2-day session on July 8 and 9. Again there were no results. The Union held its annual convention in Chicago late in July and the parties took advantage of the occasion to meet in another all-day session on July 16. Here their differences were reduced very largely. Although there still remained discord on 10 or 12 items, Plopper made clear to Scheidt towards the end of the meeting that if the Company would yield an across-the-board wage increase in the first year, and use its influence to counteract the decertification petitions pending, settlement would result. The next day the Respondent reported it could not interfere with the peti- tions, disclaimed all responsibility for them, and again refused any blanket raise the first year. By this time picketing had started at a number of locations. At the close of the July 17 meeting the Union asked Scheidt to reduce the Com- pany's last offer, as it then stood, to writing. By letter dated that same day Scheidt did so; his letter also stated that as of that day the Respondent withdrew recognition from the Union at a number of locations "where a decertification petition filed by the employees is pending with the National Labor Relations Board," and listed 25 such stores and locations. The next and last bargaining conference took place at a hotel in Chicago on August 5 and 6, a Federal conciliator in assistance. Plopper was accompanied by the regional vice president; there were also in attendance a large number of union agents or executive secretaries from local unions everywhere. The area of disagree- ment was pinpointed. At the end of a second day of discussions, the Union offered a compromise aimed at final solution. It suggests an across-the-board wage increase of 5 cents for only those employees who had been more than 6 months with the Company, or who were not included in the list of individuals for whom the Company was offering merit raises. Scheidt rejected both proposals. The union committee then said it would refer the last offer for a vote to all its local union representatives who were gathered there, with no recommendation on whether to accept or reject. Scheidt then reiterated that he was not bargaining for those stores where decertifica- tion petitions were pending, that in the event the employees at any store voted to accept the offer, the benefits involved would be put in effect immediately, even though in some locations new contracts would not be made until a later date due to other expiration dates, and that as to the locations where recognition had been withdrawn, everything must await resolution of the majority question. The union representatives voted to accept the Company's offer and Plopper promptly so advised Scheidt, with the understanding that the terms agreed upon would then be voted on by employees in each store affected and the Company kept advised as the results became known. Plopper and Scheidt also agreed that the contract language would be drafted by the Company, and submitted for approval to Vail, of the California group, as he had participated more extensively than any other union agent in detailed talks while the complex terms had been ironed out. Soon ratification meetings were held in practically all the stores in which the Com- pany had not withdrawn recognition. It took until October for Vail and company 1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representatives to settle the precise contract language, until finally, over a period of months extending into the early part of 1964 , contracts were signed in a number of stores. Wherever the ratification votes were favorable, most of them toward the end of August , the substantive terms of the new agreement were put in effect immediately, although the contract itself was not signed until later . In those situa- tions where the existing contract did not expire until later , the economic terms, i.e. those not related to union security, were also given then and there , and the remaining provisions put in effect when the replacement contract was executed. 4. The company elections in August By mid-August petitions had been filed in all but a very few of all the 39 stores named in the complaint. The first charge, asserting a companywide scheme to bring about the petitions, was filed in July; it was soon followed by supplemental and amended charges of the same kind. In view of the pending charges action on all the petitions was suspended, in keeping with established Board practice, until the merits of the alleged unfair labor practices could be investigated. By August 22 there were petitions for 34 stores and an RM (employer petition) in the 35th store-Baker. Of the remaining four stores, decertification petitions were filed on September 6 at DuBois and Royal Oak, and on November 11 at Mr. Vernon. None was filed at La Junta. Starting on August 22 and continuing through August 27 the Respondent held its own elections among the employees in 26 of the 35 stores for which petitions were then pending. As to the remaining nine, in five the decertification petitions had been filed but recently: Salisbury August 5; Southgate August 21; Royal Oak August 12; Sacramento August 5, and Pittsburg August 5. Shortly before August 27 the General Counsel brought an injunction proceeding in the Chicago Federal District Court to enjoin further such elections by the Company. Of the remaining four locations where petitions were pending , in two-Ponca City and Las Vegas-the Board's Regional Director had conducted Board elections , and in the other two the existing contracts were not due to expire for some time-in Chico until January 1964, and in Pueblo until February 1964. The decision by the Respondent to conduct its own elections was a policy determi- nation in which Labor Relations Director Scheidt directly participated . Without advance notice as to the purpose of the meeting , the employees were called together in each store, usually the furniture department , either before or during working hours, but always paid for time so devoted. In each instance the meeting was con- ducted by a visiting company official from Chicago or some regional administrative office, and always the store manager or assistant store manager was present . Ballots were distributed and marked by each employee in some corner of the room. The ballots asked whether the employee "wished to be represented for purposes of collec- tive bargaining" by the Retail Clerks Local Union involved. In each case an out- sider-bank official, police chief, publisher , etc.-was invited to handle the eligibility list and count the ballots. A representative of the local union was in most cases asked to be present, but again with no advance notice of the purpose of the meeting, to express any views he wished ; rarely did anyone speak. The visiting management representative proceeded by reading a 14-page document prepared by the labor relations director in Chicago in collaboration with the Respondent's board chairman . The first four pages were identical at all locations and read as follows: I am here today to talk to you about the status of the Company's relations with the Retail Clerks Union, and the course of action the Company intends to follow. As early as January of this year the Company proposed to establish several new benefit programs to be effective on June 1. Meetings were held during the Spring at which these benefit improvements were explained to the employees, both at locations where the employees were represented by a union and at loca- tions where there was no union. Also, the Company's proposal was explained to and negotiated with the unions at those locations where the employees have chosen a union as their bargaining representative. Other unions-that is, unions other than the Retail Clerks Union-accepted these new benefit programs as a part of a total contract prior to June 1. Conse- quently, the entire program is now in full effect, and has been since June 1, for all Montgomery Ward employees , both union and non-union , at all locations except those few where the Retail Clerks' Union represents or claims to repre- sent the employees. MONTGOMERY WARD AND CO., INCORPORATED 1237 On the other hand, negotiations with the Retail Clerks Union were prolonged and no agreement was reached with this union prior to June 1. Consequently, the new benefits could not be made effective at the locations where this union claimed bargaining rights. Within the last two weeks, however, the Union's Bargaining Committee advised us that meetings of employees would be held to vote upon the Company's pro- posals for a new contract. The Committee, as well as the local union repre- sentatives have recommended acceptance of the proposals and we are currently receiving acceptances from the local unions as these meetings are being held. At about 35 of the locations originally involved in the bargaining with the Retail Clerks Union, employees of the stores filed decertification petitions with the National Labor Relations Board seeking an election to determine whether a majority of the employees wished the Union to continue to represent them. These decertification petitions, along with other circumstances, raised a substan- tial question as to whether the Union still was the choice of a majority of the employees as their bargaining representative in this store. We notified the Union of our doubt as to their majority status and declined to bargain further until the question of majority representation was decided by a National Labor Relations Board election. Normally, such elections are held within a short time and the issue is resolved promptly. The Union, however, then filed unfair labor practice charges, which have the effect of delaying the holding of an election until the National Labor Relations Board has investigated the charges. The principal basis of the charges is the allegation by the Union that the Company coerced employees into filing and supporting the decertification petitions. While the Company does not believe it has committed any unfair labor practices and welcomes any investiga- tion the Board may care to make, we regret that the election will be delayed until all the charges have been completely investigated. While we believe you should have a right to decide by a secret and official vote whether or not you wish to continue to be represented by this union, it may be months before this is accomplished. The Company believes it is unfair to longer delay making effective in these stores when a decertification petition has been filed, the benefit programs and other improvements the Company wishes to make. Accordingly, we asked the Union to agree that these benefits might be made effective immediately, subject to the results of the decertification election which would be held by the National Labor Relations Board at a later date. The Union, however, flatly refused to agree to this. Under the law, as we understand it, the Company can make these benefit programs and other improvements effective here in the store immediately if the Union is not the choice of a majority of you as your bargaining repre- sentative. On the other hand, if a majority of you desire the Union as your representative, then the Company cannot make these changes effective without first bargaining with the Union. Now, of course, only you folks in fact know whether or not you wish the Union to be your representative. We know that a decertification petition has been filed, because of this and other circumstances, we question whether or not a majority of you do wish this Union to represent you. One fact is certain. Because of the uncertainty over whether a majority of you do in fact want this Union as your representative, coupled with the fact that there may be a long delay before the National Labor Relations Board holds an election, you are being deprived of the new benefits programs and other improvements which the Company wants to put into effect here in this store. This is what we propose to do: A secret ballot election will be held immediately after I conclude my remarks. You may vote either for the Union or against the Union. If from the results of this election it appears to us that a majority of you no longer want this Union to represent you, we will put the new programs and the other improvements in effect immediately. If, on the other hand, it appears to us that a majority do want the Union to continue as your representative, we will immediately offer to sign a contract with the Union incorporating the same programs and other improvements. The proposed effective date of the changes in either event would be the same. You should not believe in any way that by means of the election we are encouraging you to vote one way or the other. In fact, there should be no benefit to you one way or the other insofar as the benefit programs and other improvements are concerned. Our desire is only that you be permitted to enjoy the new programs and this is the only means we know which we can take to 1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD permit their installation without an extended delay. Our concern is simply to determine whether or not you wish the Union to continue to represent you at this time. So that you understand what the new benefits programs and other improve- ments I am talking about are, I would now like to review with you the main provisions of the proposals made to the Union which are presently being accepted at other locations where this Union represents employees. The written script continued with a detailed restatement and explanation of the "three giant steps," the revised insurance, retirement, and savings plan. There then followed a further minute recital of the changes in working conditions which were included in the proposals which, in the intervening period, the Respondent had offered the Union at the various negotiation sessions, and which had formed the basis of the national settlement reached in Chicago on August 7. These included revisions in vacation plan, selling employee compensation plan, layoffs, wages, merit wages, and miscellaneous "improvements." The analysis, in addition to setting out the facts of what the Company was offering, included a number of statements of the various ways in which the employees would be better off with the new "benefits" than they had been before. Toward its close, the prepared statement contained this language: So there will be no confusion, I want to again restate the situation. If a majority of you do not want this Union to represent you, we will put the new programs and other improvements into effect immediately. If a majority of you do want the Union to continue as your representative, we will offer to sign a contract with the Union immediately incorporating these same programs and the other improvements. In this latter event, the contract also would include any other provisions which the Union might demand and the Company agrees to. The results of the 26 elections held by the Respondent were: in 15 stores the employees voted against the Union; in 9 they voted to retain the Union; in 2 the results were inclusive. D. Analysis, subsidiary related facts, and conclusions 1. First considerations This case calls for decision on whether the Respondent's refusal during 1963, to bargain with various locals of the Retail Clerks was a lawful exercise of its right to discontinue recognition of a bargaining agent when there is an honest doubt of majority status, or whether instead its total conduct reflected illegal rejection of the duty to extend to the chosen agent of its employees the unqualified recognition which Section 8(a)(5) of the Act dictates. The burden, as always, is upon the General Counsel to prove the latter allegation affirmatively, with a preponderance of the sub- stantial evidence on the record as a whole.20 Because of the character of the main issue, and in view of the record as it stands, some preliminary comments are required for clarity of discussion and conformity with law. (a) It is in the nature of human conduct that short of overt confession of guilt the state of mind can only be shown by reference to collateral and related behavior which points, more or less persuasively, either to a lawful and proper motivation, or to a dishonest and deceitful intent. Proof of ulterior or evil purpose in the doings of men is therefore necessarily indirect and circumstantial, with the indications appearing in diversified words and acts having both qualitative and cumulative weight. It is for this reason that the basic allegation of the complaint in this case stands or falls depending upon whether or not those activities of the Respondent upon which the Government relies support and require a conclusion that the many refusals to bargain reflected fundamental rejection of the principle of collective bargaining which the National Labor Relations Act imposes upon employers as a sine qua non of the right to engage in interstate commerce. These activities, or course of conduct, are for the most part openly conceded, or in large measure established beyond possi- bility of dispute in the oral and written admissions against interest by company agents. There are other facts, proved by the Respondent, lending support to a contrary inference of propriety in the decisions to withdraw recognition from so many local unions at the time of the events. (b) As worded in the complaint, and as discussed in many past decisions in this area, the question is phrased as whether the Respondent acted in good or bad faith. Sometimes this is called a question of fact, sometimes one of law; the distinction, if there be any, is not determinative. What is significant is that this is the question raised by the pleadings, litigated throughout the hearing, and to be decided now. 90 Glen Raven Silk Mills, Inc., 101 NLRB 239. MONTGOMERY WARD AND CO., INCORPORATED 1239 Of greater importance is the distinction, in terms of what the record contains, between what is fact and what is opinion, or argument, or conclusion. Because in this case the reasons underlying many of the critical acts shown to have been com- mitted merged inseparably into the heart issue of the case, sworn testimonial state- ments by any individual representative of the Company as to why he did this or that, may not, and cannot be viewed as establishing the fact, or conclusionary findings, as to what his reason was. Such statements, although uttered in the formal setting of sworn answers to examination on the record, are only oral reaffirmations of the denials, set out in the Respondent's answer, of the conclusionary allegations of the complaint. Regardless of whether the end question of motivation be considered one of fact or of law, the facts upon which the decision eventually rests must be only those things which, on the basis of competent and probative evidence, are shown to have been said and done. In the context of this case, arguments and contentions, no matter under what guise made part of the record, cannot serve to detract from or alter the objective basis from which inferences are to be drawn. (c) All this notwithstanding, the nature of the main question made it inevitable that much oral testimony, as well as voluminous documents, were placed in the record although they neither prove asserted facts nor truly pertain to the real issue. Repeatedly the General Counsel argued that while the surface appearance of circum- stances-decertification petitions filed by and in the name of employees-may seem to justify the subsequent refusals to bargain, other facts which he offered to prove would serve to establish the existence of another, hidden or unarticulated motive. With broad latitude thus necessarily given the prosecuting side, fairness required no less freedom to the Respondent to prove, as it wished, whatever facts it believed would negate the inference of illegal motive sought by the complaint. Indeed any Respondent accused of bad faith in its affairs is entitled, as a minimum, to unfettered opportunity for self-exculpation. To assure the Respondent this fundamental and just privilege in this instance, the General Counsel's continuing objections to ques- tions calling upon the Company's chief labor relations director to explain why he decided, at any given time, to refuse to bargain, were consistently overruled. Labor Relations Director Scheidt played the lead role in the Respondent's decision when it refused to bargain further with respect to 34 different stores. His explanation of his reasons spans all or a good portion of five successive hearing day transcripts at the close of the case. This constituted the essential defense to the complaint and the principal effort to rebut the inference of unlawful purpose which the General Counsel contends must arise from the related facts which, up to that point in the hearing, had been proved on the record. Scheidt appreciated the import of the proof of such facts as the speeches he ordered, the decertification brochure he dis- tributed, the widespread assistance and encouragement which store managers had given employees towards decertification, and other no longer controvertible evidence of activities by company representatives. He therefore sought to minimize his reli- ance, in 1963, on the many decertification petitions which had been filed, and asserted that there were other facts, of which he was aware, which were pertinent, which he had considered on the question whether there then existed real questions concerning representation, and which, considered together with whatever other facts the record may reveal, serve to explain his actions as a reasonable, logical, and not illegal course of conduct. The reasonableness of his conduct in view of what facts the evidence has in truth established, the likelihood, in the light of human experience generally and of expert knowledge in this field especially, that those proven facts were indeed his substantive considerations, are matters properly to be considered, and will be discussed below. What facts his running commentary from the stand and his file documents prove, as a matter of evidence, however, is a different question. He spoke in great detail of things which he said he knew had happened in the many stores during 1963, 1962, and even 1961, which employees all over the country had done and said, which many store managers had seen and heard and then told him-in person, by long distance telephone, in written reports, through company officials or Scheidt's agents who had visited the managers. All these statements of Scheidt from the witness stand were pure hearsay, always at least once removed from the asserted facts, very often two or three times passed from mouth to mouth before offered as evidence by him. In constant refrain he candidly admitted that of his own knowledge he knew nothing of all these matters. Neither his hearsay testimony nor the documents on which he said he relied and which he offered into evidence were received as proving the truth of the matter so allegedly reported to him. Clearly all parties were told by me on the record again and again that such "evidence" was not being received as proof of the asserted facts. 1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the risk of seeming to belabor the point, it is of utmost importance in this case to clarify the conclusion, here made, that none of the facts said to have been reported to Scheidt have been proved on this record. An underlying theory of the Government is that when the employees turned against their union in 1963, both in starting decertification petitions and in voting against it in August when the Com- pany itself polled them, they did so essentially because the Respondent illegally coerced them into such acts. Scheidt wanted to prove that their antiunion tendency long antedated these events. If there were truly proof of such desires or steps on the employees' part, these would certainly be factors to be considered. There is danger that too hasty a reading of this long record by a reviewing authority might mislead the reader into accepting the hearsay as fact, if only because, in reporting the story for 36 separate stores, Scheidt kept parroting the same indirect story again and again. (d) This hearing rested upon a single complaint issued against a single company Respondent. Although the activities, collectively, said to prove the basic unfair labor practice charged, occurred at 39 separate locations, the theory of the case is that the entire pattern of conduct was conceived and executed through a central decisional authority, the Respondent's main labor relations department in Chicago. It is not seriously disputed that most of the local activities were directed from Chicago; indeed, in most instances it was high company officials, either stationed there or in regional administrative offices subject to direct Chicago supervision and instructions, who journeyed to the various stores for the very purpose of committing the major acts said to prove the single illegal objective. As the principal activities said to reveal the nationwide antiunion scheme occurred almost simultaneously in distant parts of the country, charges were filed by local unions in different regional offices of the Board at about the same time. As these were also simultaneously being investigated, necessarily it was sometime before the pattern of the Company's activities emerged and came to the attention of higher officials of the Board. In consequence of the time thus administratively consumed in the development of the national picture, some Regional Directors processed decerti- fication petitions without knowledge of their relationship to facts which were being developed elsewhere; others suspended all action on the petitions as charges were filed in the same Regional Office or as they learned of related charges filed elsewhere In two instances-Ponca City and Las Vegas-decertification petitions even went to a Board election, but before the proceedings were completed, on advice from the Board's central office in Washington, they too was interrupted and those locations made part of this single nationwide proceeding. In due course all charges, regard- less of where filed, were referred to the Board's Chicago Regional Office and merged into this single case. The Company has long made it a policy not to extend recognition to any local of the Retail Clerks except on the basis of a Board election in regular separate repre- sentation proceedings, and in virtually all of the stores involved recognition and the subsequent contracts rested upon separate Board certifications in single store bargain- ing units. Resting in part on this fact-that bargaining has been predicated upon separate store units and separate Board certifications-and the fact that for a time, at least, a number of the decertification petitions filed in the summer of 1963 were processed up to a point by one or another Regional Director, the Respondent advances a contention in defense that warrants consideration now so that correct appraisal of the case as a whole can better be understood. The Respondent argues that whenever a Regional Director proceeded with any of the usual administrative steps towards processing a decertification petition filed, he thereby recognized its validity. In some instances a notice of hearing was issued, indicating that the Regional Office was satisfied with the adequacy of the showing of interest, or absence of contract bar, or expiration of certification year. The con- tention is advanced that the Respondent had a right to rely upon the particular Regional Director's action as grounds to withhold further recognition from the local union involved, and that therefore its refusal to bargain must be excused. An under- lying and broader predicate for this pinpointed defense is that the entire proceeding should be viewed as a series of separate, unrelated incidents or employer-employee relationships, as though at each store there had been an independent, completely autonomous union and a distinct, individual employer having no connection what- ever with any other store in the chain or with the Montgomery Ward main office in Chicago. The real burden of this argument is that unless it is proved, on the basis solely of the evidence relating to a single store, that an unfair labor practice was committed there, the complaint must be dismissed as to that store. This position was strongly stressed in the Respondent's motion to dismiss at the close of General Counsel's case. MONTGOMERY WARD AND CO., INCORPORATED 1241 Looking more deeply into divisive theory of defense, as it were, there appears the ultimate argument of the Respondent. Just as it insists that a separate, inde- pendent violation of the Act must be found at each and every location, the Respond- ent also would have it that no separate act by any of its agents, no speech, no docu- ment circulated or posted, can be used as partial or cumulative evidence of illegality unless each act, speech or paper in itself, and in isolation, can be said to constitute an independent unfair labor practice. The net effect of this total defense, in the context of this overall case, is an attempt to evade the logical principle of circum- stantial evidence, which recognizes that there can be a variety of resemblances so combined as to bear upon a single point and lead to an inescapable conclusion.21 The argument that each separate store location, and each decertification petition filed, should be appraised without consideration of the remainder of the record, is rejected. Acceptance of this argument would excise from the record the singleness of purpose in the Respondent's centralized and integrated operations, the combined, multistore collective bargaining that led to the 1958 contracts in most of the stores and that was in progress again in 1963, and the necessary complexity of the adminis- trative enforcement structure of the National Labor Relations Board. The Act vests in the office of the General Counsel, in Washington, D.C., ultimate authority to de- cide when and where to issue complaints in unfair labor practice cases; the Regional Directors are agents of the General Counsel and subject to his supervision in proceed- ings of this kind. The lines of communication among the various regional offices funnel through the common touchstone that is the Washington central office itself. Inevitably, where the operations of a single employer are dispersed throughout the country and there is a common denominator shedding light on occurrences in wide- spread locations, the piecemeal information revealed by local investigations following separate charges must first be collated at a focal point before the true significance of one company's activities can be intelligently evaluated. If in an isolated location or two a regional office took normal action on a decertification petition, or even dismissed a charge, resting only on what information could be learned locally of the pervasive conduct of the Company centered in Chicago, or before the total picture emerged by a single examination of all the field investigations conducted in various parts of the country, such preliminary determinations are to be expected when a governmental agency deals with an operation of the magnitude of Montgomery Ward-the second largest retail enterprise in the United States. Indeed there is a compelling parallel between the ramified character of the Federal administration of the National Labor Relations Act, as amended, and this Company's pipeline control of all detailed functions in its far-flung chain of stores. Labor Rela- tions Director Scheidt made it a point to emphasize it is he who decides all matters of labor relations, and not any single store manager. Yet he complained when the Board's Regional Director in Chicago refused to hold elections on pending decerti- fication petitions until the broader question of whether they had been inspired by the Company throughout the country could be verified. He was advised that the Act must be administered as a centralized, single purpose agency of Government. And when he changed his mind as to several of the stores where he had previously refused outright to bargain, and requested that as to those particular ones elections be held by the Government, he was impatient with the administrative decision to continue to view the case as a whole. It ill behooved him to say, from the stand, that there was "prejudice on the part of the National Labor Relations Board against Montgomery Ward in any action that it might take with regard to the locations involved in this case...." It is too late in the day for the representative of so large a company to defend illegal conduct, if illegal it was, on the ground that Government has no right to insist upon applying the laws coherently and intelligently, albeit from a centralized, distant office like the Nation's Capital. Certainly the fact that the General Counsel insisted on fleeing the employees from the alleged coercive conduct of the employer before holding any election, cannot excuse the Respondent's conduct in arrogating to itself the privilege of holding elections and asking the employees to choose between collective bargaining and immediate improvements in their working conditions. si See, Justice Frankfurter's separate opinion in N.L R.B. v. Insurance Agents' Interna- tional Union, AFL-CIO (Prudential Ins. Co.), 361 U.S. 477, 506: Activities in isolation may be wholly innocent, lawful and "protected" by the Act, but that ought not to bar the Board from finding, if the record justifies it, that the isolated parts "are bound together as the parts of a single plan [to frustrate agree- ment]. The plan may make the parts unlawful." 1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The illegal refusals to bargain On the record in its entirety, including what has been reported here and the many evidentiary details too numerous and cumulative to warrant restatement, I find that the Respondent's refusal to bargain further with the Union with respect to 34 separate store units, was not based upon a good-faith doubt of continued majority status, but reflected instead a companywide program devised and implemented for the purpose of eliminating the Union as a spokesman for the employees, and that its total conduct proves a pervasive intent to deny to the Union the agency status accorded by the statute and to the employees the right to self-organization guaranteed by law. I also find that, with respect to four locations where there was no literal refusal to bargain (Southgate, Royal Oak, Pittsburg and La Junta) the Respondent violated Section 8(a)(5) of the Act by those activities which were intended to, and necessarily had the effect of improperly coercing the employees into abandoning their adherence to the Union. The principal acts of the Respondent pointing to an intent to undermine the Union's representative status fall into three general groups: (1) the May benefits speeches, given in most of the stores involved and followed forthwith by decertifica- tion movements; (2) the widespread encouragement and assistance given by store managers and other agents of the Company to employees who started to take action towards decertification; and (3) the 26 company elections in August, in 15 stores followed immediately by unilateral grant of improved working conditions to the employees, and in 9 by invitations to bargaining which placed the local unions in untenable positions as effective spokesmen for their members. The claim that the August elections were aimed solely at ascertaining whether the employees wished to be represented by the Union-assuming such interrogation is proper in the circum- stances-is effectively weakened, if not totally destroyed, by the preelection speeches, which in effect converted the question into a choice between better working condi- tions now and union representation. The May speeches, and their necessary, or intended effect, can best be appreciated in the light of other facts bearing a relation- ship to that conduct, facts which, the Respondent knew, also affected the employees. When these collateral matters are considered, the contention that the Company did no more than keep its employees advised of the course of current collective bargain- ing loses practically all persuasion. a. The benefits speeches in focus Having determined in 1962 to institute its new benefits program throughout the chain, and aware that as to those employees who were organized their unions must be consulted, the Company decided to deal with the Teamsters first. That union represented about 22,000 of the overall employment complement of approximately 80,000 persons. The Teamsters locations included 10 mail-order houses, a few attached retail stores, and 44 straight retail stores, exactly like those represented by the Retail Clerks. In these regular independent retail stores the Teamsters repre- sented about 4,000 employees, while the Retail Clerks, in about 80 such stores, repre- sented approximately 5,500 persons. After preliminary talks, real bargaining sessions with the Teamsters took place late in March 1963. and agreement was reached by April 9. As set out above bargaining with the Retail Clerks began in San Francisco, for the group of stores comprising the southwestern region, on April 2, and proceeded with little delay through May. Like meetings took place in other cities also in May. From the outset the Company conceived the thought that all employees should eventually view the new benefits program as an improvement in their situations, react with greater appreciation of what the Company was doing for them, and in the end devote themselves more earnestly towards improved work performance. It also deemed it essential that the employees should be enthusiastic in the matter, because portions of the program-such as profit sharing and greater retirement provisions- required voluntary participation. Towards these ends it embarked upon a scientific "teaser" program to arouse their curiosity and create an emotional anticipation in the stores. The campaign started with equivocal references in its monthly newspaper, "The Forward" informing employees of good things to come but deferring any defini- tive information. These were followed, during April or earlier, with large, colored, and dramatic posters on the walls of the lounges or restrooms of the stores "A GIANT STEP FOR YOU," "DON'T MISS YOUR GIANT EMPLOYEE BENEFIT RALLY COMING SOON," "THE FORWARD LOOK AT MONTGOMERY WARD," "ONE FOR THE MONEY, TWO FOR THE SHOW, AND ON THREE WE GO." Labor Relations Director Scheidt described these posters as part of the Company's "hard-hitting effective program that would arouse the emotion and stimu- late the employees." MONTGOMERY WARD AND CO., INCORPORATED 1243 With all this introductory excitement concluded, the Company proceeded in April, after the settlement on new contracts had been reached with the Teamsters, to hold meetings in all of the 800 stores except Retail Clerks locations. Now benefits speeches were given, exactly like the ones made in the Retail Clerks stores later in May, except for the introductory statement, set out above, which called attention to the complica- tions and delays following upon the existence of the Retail Clerks as bargaining agent in these particular stores. The Company had originally planned to announce the plan to the employees and put it in effect earlier, but the delay until March in the Teamster negotiations had forced postponement of the intended action. The employ- ees were told the benefits would go into effect on June 1, detailed booklets precisely outlining the new plans were distributed to each person, and all were invited to fill in application and participation cards for payroll office use. The June 1 date particularly fitted the Teamsters locations because, like the Retail Clerks stores, the new Teamsters contracts would take effect on that day. The May issue of the company newspaper, The Forward, distributed in all stores as usual, repeated substantially the terms of the new benefit program and stressed anew the June 1 effective date. Six full pages of that issue of the newspaper were devoted to emphasizing the improved working conditions resulting from the Company's largess. The record also shows that through those normal channels of communica- tion whereby employees of any large organization quickly learn what happens at other places, employees of many Retail Clerks stores soon heard that the speeches had been given in most of the stores, that others would receive the benefits on June 1, and that the Teamsters had come to terms with the Company on contracts including all these innovations. Witnesses spoke of neaiby stores where the April speeches had been given, of proximity to regional administrative branches of the Company where office employees had been told of the benefits, and of other aspects of grapevine news. Late in May the speeches were given in the Retail Clerks stores. By this time many bargaining sessions had been held at San Francisco and other cities, and the area of disagreement had reached the point where it began to appear clearly that a major obstacle to settlement was the Union's insistence upon an across-the-board increase for all employees during the first year of a new contract. The Company adamantly refused to yield, holding firm to its original offer of only selective, individ- ual merit raises for named employees in each store. A fact of significance in consider- ing the Respondent's conduct in these speeches is that, unlike its adamant position towards the Retail Clerks on this demand, its settlement with the Teamsters did include, in the form of an original offer by the Company, an across-the-board hourly raise immediately. With the foregoing as the setting in which the benefits speeches were made, it is not surprising that the reaction was a widespread movement to "get rid of the union," as so many employees quickly told the speaker in a great many stores. And it is a virtual admission by the Company's labor relations director that this is precisely the development which he anticipated and counted on. He testified that about May 15, he wrote the three-page introduction to be used by each speaker as a preliminary to explaining the benefits the Company wished to give these employees. The most sig- nificant message contained in those paragraphs was that because of the presence of the Union in these stores, "unfortunately" the benefits would not be given at this time; he stressed the fact that where there was no union, June 1 was the day to "go"; he even emphasized the fact that, unlike the Retail Clerks, other unions had agreed to the plan and employees represented by such organizations would quickly enjoy the improve- ments. But a day or two before drafting this message to the employees, he carefully wrote the decertification brochure for use by each of the speakers. It was put in the hands of every speaker, and Scheidt testified: "It was my intention that they be familiar with the contents of these documents in case employees made inquiries per- taining to the subject matter of those documents." There can be no question he knew the timing of the speeches, together with the high pitch of desire that had been created in the minds of the employees by the teaser campaign, and the blame which the speakers placed upon the Retail Clerks for what they called an unfortunate delay, would provoke decertification sentiment. Does his total conduct also show that his purpose was to bring about this attitude? Is there a substantive distinction between inevitable, necessary or expected consequences, and intended results? 22 While the speakers were leading the employees into thinking the Retail Clerks responsible for their special treatment and denial of benefits, and holding the Teamsters out as a more agreeable labor organization, Scheidt was refus- ing to the Retail Clerks one of the very concessions which he had always been willing to give, and in fact had given to the Teamsters. Like any other employer, the Respondent was under no obligation to offer the same terms to one union for some 22 Radio officer's anion (A. H. Bull Steamship Company) v. N.L.R.B., 347 U.S. 17. 1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of its employees that it saw fit to propose to another. But having chosen to favor the Teamsters in its treatment of the same class of employees doing precisely the same kind of work, was it good faith on Scheidt's part to contrast the action of the two unions in the eyes of the employees so that the Retail Clerks would appear as an impediment to the interests of its members? It sits poorly in the Respondent's mouth now to explain these speeches as being compelled by the aroused curiosity of the employees, by the need to quiet a disturbed morale, by the Union's failure to keep its members informed of the employer's pro- posals in the bargaining that was going on. The curiosity had been engineered by the Company itself; if the employees were peculiarly sensitive to any impediment to immediate enjoyment of the long-heralded benefits, it was the Respondent which had created the atmosphere. Despite the length of the record, there is a minimum of real evidence of any morale problems in the stores, most of the "proof" of this assertion consists of hearsay evidence by the labor relations director and by the chairman of the board that reports had been received orally from managers of employees inquiring about the benefits program. Against this there is considerable direct testimony by the very employees who started decertification movements to the effect that they were provoked by the benefits speeches. And as to the charge now that the Union was responsible for what the Company did in May, there was no obligation upon the Union to further the Company's desire to convince the employees of their employer's generosity. But even accepting these broad assertions at face value they serve little to strengthen the defense, for the case law cited by Respondent is inapposite. There is nothing wrong in an employer advising employees of the course of collective bargaining, or explaining to them the terms of its proposals to their union. Had the Respondent limited itself to such objective statements of fact to the employees, a different question would be presented. In the very case cited in defense, the correct and applicable principle of Board law is set out, and the employer's report to his employees was found to support the conclusion of illegal conduct. In Fitzgerald Mills Corporation, 133 NLRB 877, the Board said: While an employer may report to its employees the history of the negotiations with their representative, the cases so holding are clearly distinguishable from the situation here in that none of them involve reports which in their context and in the context of events was shown to be unlawfully motivated. Here the "context of events" includes the decertification brochure each speaker carried with him in anticipation of the very reaction which followed. It includes the persuasive indications appearing in the speech scripts, that the Respondent chose to utilize the occasion to disparage the Retail Clerks, to build on its disparate treatment of the two major unions and the adverse position in which these employees stood at the moment, so as to generate a cleavage between them and their chosen representa- tive. The related events also require consideration of all that the store managers and other company agents did in direct consequence of the speeches. And, most impor- tant, the total context demands that the final elections by the Company, in which the employees were asked whether they wanted benefits, be viewed as what they really were-bargaining directly with the employees-the benefits in return for a "no union" vote. Antiunion sentiment in the heart of employees born out of the simple knowledge of their bargaining agent's reaction to an employer's attitude, is one thing. A like reac- tion following immediately upon the unfolding pattern of activities of an employer as shown on this total record, is something entirely different. b. Inducement of and participation in decertification activities At a number of points in their benefits speeches, the speakers were instructed to call for questions; they did so. Naturally many questions were asked for clarification of the refinements and individual applications of the new benefits program. As was also expected, there came, in virtually all these stores, specific inquiries on how the employees, particularly those who were not union members, could obtain the benefits now, and how they could "get rid of the union " Fortified in advance with the decer- tification brochure, in some instances the visiting speakers and in others the store managers gave much assistance. A great number of the petitions received in evidence are worded in exactly the phrasing appearing in the decertification brochure, one including 23 words. The argument is made in defense that all that happened during this period is that the company representatives responded to inquiries about the mechanics of Board proceedings, matters that are of public knowledge and that any employer may truthfully explain without thereby revealing illegal purpose or union animus. And there were instances where, so far as the record shows, all a MONTGOMERY WARD AND CO., INCORPORATED 1245 manager did was give a Regional Office address on request, or tell an employee to communicate with the Board, or simply hand over the decertification brochure. But this aspect of the case, too, is to be viewed as a total picture, with all of its parts collectively appraised, for a true appreciation of the significance of the overall pattern. The particular developments at each store were but the expected development of a centralized scheme of planned assistance. How this was carried out, therefore, requires a broader look at events all over the country.23 If the need on the part of employees to inquire concerning Board proceedings, if the very desire to reject an established bargaining agent, are caused by employer con- duct, the resultant question and answer become but a component segment of a broader unified story. In this case, theretore, even the simple act of handing to an employee the decertification brochure, with no word spoken, must be weighed in the light of the fact that the benefits speaker had just finished saying it was "unfortunate" the employees were hampered by the Retail Clerks, that employees with no union were already free recipients of the gift, and that even those who had other unions were better off. That the purpose of the unfolding plan was to provoke these questions, that it really was the Respondent which caused the ostensible "inquiries" to arise, is also persuasively indicated by management activities over and beyond the unques- tioned broad pattern of events and the reading of the prepared script. Outright sug- gestions, or unsolicited advice that employees start decertification movements cer- tainly stand apart from mere answers to employee curiosity.24 In Carlinville Store Manager Fraser told employee Ringer, before anyone knew what the speech was going to be about: "Be sure and ask how to withdraw from the Union." This was more like an order than an answer. When, in the midst of employee reaction that they would have to "get rid" of the Union before they could receive the benefits, the speaker at Port Huron said "It was a darn shame" the employ- ees were being prejudiced, he did more than inform, he inflamed. And so with Manager Montgomery, at Hillsdale, when the union steward, who could hardly know what was going on in highly centralized negotiations between the Company and the Union, was unable to parry the heckling of employees during the benefits speech. Montgomery threw in "It was a hell of a note" that the Union, which he called a "small organization," could "deprive" the employees of the benefits. Store Manager McVay helped spark the fire in Petoskey by quoting Churchill, as he said. An employee asked why he could not have the benefits and the speaker answered it was "impossible" because the Union would not agree. At this point McVay threw in "It was too bad that so many had to suffer because of so few." Churchill was above all partisan. Case precedent which recognizes an employer's right to inform employees of governmental procedures, presupposes a neutral employer, one who does not himself interfere with the employees' freedom to decide these matters for themselves. The managers here were whipping up a storm. The manager at Butler fully explained the procedure to Gallagher, and when she had received forms from the Government and reported what she was doing to him, he cautioned her that she was not going about it correctly, that she had to take "step one first . . . you have to get the percentage of the employees to sign the petition." He said he would help her again later, and when he went on vacation told the assistant manager to do that. And the assistant did-into the middle of the night-so that the formal petition could be mailed at 1 a.m., and avoid more employees striking their names from the supporting sheet. Hilsabeck, a manager at Maryville, asked one employee whether he had signed, and added ". . . he wanted me to sign it ... it was 1' Scheidt testified this was not the first time he had written a decertification document of this kind ; he said he had distributed a similar one in 1962, 1961 , and 1960 to regional personnel managers. On an earlier occasion , in 1962 , one of these managers responded to the circular in a letter to Scheidt saying: "It is doubtful that very many Store Managers, let alone timecard people , know anything relevant as to what they should do to instigate decertification . If possible , it seems to me a simple one page bulletin should be posted telling them how to go about it." In an attempt to prove that his purpose had been misconceived by that particular manager, Scheidt presented a letter he had sent in reply, telling the manager not to do that. But what is significant here, and what is clearly indicated by that manager's reaction to such a document placed in the hands of company agents, is the normal reac- tion of the agent. In that man's mind such precise instructions on how unions are removed from any store, were tantamount to a suggestion that he do something about it. For Scheidt to say, either in a letter written long ago, or on the stand at the end of this hearing, that he had other things in mind, in no way weakens the natural inference of what attitudes such documents are likely to provoke in the mind of the recipient. 24 Ridge Citrus Concentrate, Inc., etc., 133 NLRB 1178. 1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a chance to vote for the Union or not " The manager's secretary, by permission, typed the papers for the petitioner at Kansas City, and at Maryville the manager himself typed the decertification petition in his home. All of this was far more than answer- ing mere inquiries. In Merced, in the midst of the decertification activities following the benefits speech, the manager told employees it was the Company, not the Union, which was giving these benefits, and that but for the Union there would have been bigger and more frequent raises. The Chico manager said to one employee "It was too bad" the employees could not enjoy the improvements until the Union agreed, and to another that the benefits looked "pretty good," but "unfortunately" the presence of the Union prevented his discussing the matter. At two cities employees expressed disappointment. In Petoskey one asked what could be done to obtain the benefits, and the manager's answer was "ask for a decerti- fication petition." He did not say the employees could also take up the matter within their union. At Las Vegas an employee reacted to the benefits speech by saying simply he did not think it was "quite fair" to the employees. The speaker's answer was to suggest that most of the employees would rather not have the Union "now." Here the managers answered no questions; they directly planted the decertification idea in the employees' minds. Dowland, a supervisor at Carlinville, solicited all the signatures to a petition. Canney, the clearest supervisor of all, obtained signatures and filed the decertification petition in his own name at Meadville. At Punxsutawney, Cowan, also a supervisor, visited employees at home to solicit antiunion signatures. Florence Smith, the "supervisor" and credit manager at Port Huron, assisted the decertification movement and was second to sign the petition. A supervisor at San Luis Obispo, Cope, obtained all the signatures during working hours and personally filed the decertification peti- tion. The activities at Merced were also entirely carried on by Qwinn, also a super- visor, who circulated the supporting sheet and then filed in her own name. All of this is a far cry from management representatives merely answering questions when asked. There are other incidents, proved here and there, which also cumulatively show the widespread activity to have been a management program as much as employee move- ment. Farkas, the lead actor among the employees in Royal Oak, kept reporting his progress to the store manager, who told him, as he FFarkasl kept adding names to his list, that the Company could do nothing until sufficient signatures were obtained. When the signature sheet was returned from the post office to the employee at Pueblo, he asked the store manager what came next, and the manager just said "Leave it with me," and carried on from there. While the petitioner at Marietta was soliciting employees in the store, as they worked, the manager asked if he had the petition "going," and when helping him later in the preparation of the formal document, said to him: "You are going to complete it and return it, aren't you?" More subtle, perhaps, but no less revealing, was testimony at Merced. The day after the benefits speech Greco asked the manager how to get rid of the Union; the manager answered that someone had already been in to see him, and nothing more. The manager had already given instructions to another employee who had asked the same question earlier in the day. This is strong indication that in the mind of the manager decertifi- cation was a joint effort by himself and the employees, for the real import of his words was that Greco had done nothing else to worry about because the manager had already seen to it that the matter of getting rid of the Union would be taken care of. Certainly his answer belies the assertion now that all the managers did was offer information requested. The assistance and encouragement by store managers thus appearing so widespread and direct, there can be little doubt the managers also knew that much of this solicita- tion activity went on in the stores and during working hours. Proof of this fact was mostly indirect, it is true, but so much of it was shown to have occurred during work- ing hours, with the managers normally spending much of their time in the selling areas, that a general practice of tacit approval and therefore blessing upon the decerti- fication activities is proved by the record as a whole. And this aspect of the activities becomes further evidence of Respondent's liability because generally there is a no- solicitation rule in all the stores.25 At times, and in certain stores, it was not observed, z' At the hearing the labor relations director identified the Company 's established labor relations' policy as including the statement : "No employee shall distribute union literature or solicit union memberships on company time, or while the employees to whom the literature is being distributed or whose membership is being solicited are on company time" In his brief he makes the flat statement: "Wards did not have in effect any rule against solicitation during working hours." MONTGOMERY WARD AND CO., INCORPORATED 1247 even with respect to visits by union organizers. But it is of no little significance that in a number of stores, during the very period in question-mostly June of 1963-nothing was done to curb the decertification activities, while the no-solicitation rule was in fact enforced against union agents seeking to combat the movement. Many managers, while enforcing the rule against union agents, or against prounion petitions, paid little or no attention to complaints that the decertification petitioners were violating the rule. c. Inducement and encouragement of employees to resign from the Union It was for the most part during late May and the month of June that the employee activities supporting all these decertification activities took place. On June 4 the Respondent distributed a formal notice to all Retail Clerks' stores publicizing the fact the contracts had expired and the employees were no longer obliged to remain union members or pay dues. The statement is factually and legally impeccable. It also announced that the Company would, for a while at least, continue to check off dues for any employees who chose to continue the arrangement. The Respondent was not obligated to continue this service to the Union in any of the many stores where the contract had expired; and the fact that it was willing to do so is a matter which tends to negate the broad contention that its basic attitude was anti-Retail Clerks. Against the proper inference, however, there is evidence of how the notice was utilized, in a number of stores at least, as a further means to encourage defections from the Union. It was posted on the bulletin board in certain stores, how many is a question because so many managers who received it said they could not "recall" whether this had been done. But there is much evidence of how a number of man- agers used the notice to induce resignations and, indirectly, decertification movements. Manager Thompson, at Butler, told several employees that if they desired to dis- continue the checkoff they should write directly to the Union, and Hilliard, assistant manager, advised employees that to terminate dues payments there "would have to be a withdrawal" from the Union. Sterritt, manager at Meadville, called six employ- ees individually into his office after having posted the notice, told them to read it, and explained to each what it meant. Manager Somers at Muskegon asked an employee if lie "wouldn't like to withdraw from the Union ... save $3.50 per month union dues," and to let him know if he decided to do that. In this same store Alice Burr, a clerk, resisted the urgings of other employees to resign her membership and told Store Manager Kunze of her fears; he told her time was of the essence, and that quitting the Union was like a raise by saving on the dues payments. She then requested discontinuance of her checkoff, but Kunze advised her to add that she "no longer wanted to be represented" by the Union, and she followed his advice. Manager Richardson, of Maryville, spoke to three employees individually about the posted notice. He told two of them that they could discontinue dues payments it they wished. He first asked employee Kunkel to read the notice, then virtually ordered him to do so, and when the man voiced his indifference to the idea, threat- ened him with "it's been nice knowing you." The assistant manager asked one girl would she "enjoy paying union dues for nothing." In Merced the assistant manager told an employee she no longer needed to pay union dues, that he had a letter that said so. When she replied she was still paying, he said she was throwing her $5 per month away. The manager at Salisbury told one employee no one in "his right mind" would pay $4 union dues when all the benefits they received came from the Company. But outright, unsolicited advice and encouragement of employees "to withdraw" from the Union, or to discontinue paying dues, is hardly the mark of a neutral employer. Indeed, such conduct of itself is clear indication of positive union animus and improper interference with employee rights.26 In this case these affirma- tive proddings of employees to turn against the Retail Clerks takes on especially persuasive meaning because they came at the very time when most of the decertifica- tion signature sheets were being circulated. d. Coe,cive polling of employees It was during July, by letter dated the 17th that the Respondent informed the Union of its decision no longer to bargain with respect to a large number of the stores involved -24 of them. The total evidence is advanced as proving bad faith over an extended period, but the most direct proof of its intent are the 26 elections 20 Newberry Mills, Inc., 141 NLRB 1167; Kit Manufacturing Company, Inc., 142 NLRB 957; Picket' Chevrolet Sales, Inc., 142 NLRB 23. 1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD held at the end of August. Each of these elections constituted a direct unfair labor practice by the Respondent, in violation of Section 8(a)(1) of the Act, in that they were coercive upon the employees, and in derogation of the Board's processes, and in violation of Section 8(a) (5), in that they were the equivalent of direct bargain- ing with them and therefore an illegal bypassing of their majority representative. The ballot given the employees to mark compared to that used in Board elec- tions-it asked did the employees wish to be represented for purposes of collective bargaining by the local union. Beyond that the election bore no resemblance to a representation proceeding, and the Respondent's contention that it ought to be viewed, and in essence given the same validity as any election under Government auspices, is completely without merit. Repeatedly in this case the Respondent sepa- rates each and every act of its agent from all others and points to precedent sup- porting the propriety of the separate deed. This chain of disassociated reasoning starts with the right to tell employees what an employer is telling their union and goes on to the right of the interrogation dealt with in the lead Blue Flash Express, Inc., case.27 To compare what this employer did in August 1963 with the polling found lawful in Blue Flash and like cases, requires not only that the election be detached from all other events dating back to May, but also that all that was said by management at the very moment of the balloting be ignored. It would require a presumption that when each employee marked his individual ballot he removed from his consciousness what he had just been told in most eloquent terms. It is not the purpose of this report to answer the questions constantly asked by the Respondent as to what an employer may lawfully do; the limit of duty here is to pass judgment upon what in fact was done, and to weigh it in the light of the case as a whole.28 The election was held in the presence of management officials, high and low, in the furniture department of the retail store in most instances. The ballots were marked in a corner somewhere, where the employees could be seen. Before the balloting, for perhaps 30 minutes, a visiting management representative spoke to the employees to explain, in great detail, the revised and improved working condi- tions which the Company wished to give them. The script for this talk-14 type- written pages-is in evidence. The first four pages discussed the relationship with the Union and the fact the benefits were not being enjoyed at this location. And the burden of the message, repeated in many forms, was that the Union was directly responsible for this handicap to the employees. The first point was that the Union was at fault because it had not agreed to the Company's contract terms. Thus, the speaker started by saying that other unions- "that is, other than the Retail Clerks Union"-had accepted the benefits, and "con- sequently" they had since June 1 been in effect in all stores of the Company except "those few where the Retail Clerks Union represents or claims to represent employ- ees." He immediately repeated that no agreement had been reached with this Union, and "consequently" the benefits could not be made effective at the locations where this Union claimed "bargaining rights." The next assertion was that it was the Union's fault because it had filed charges. The speaker explained the relationship between the decertification petitions filed by the employees and the charges filed by the Union, "which have the effect of delay- ing the holding of an election until the NLRB has investigated the charges," and that this might take "months." And again the onus of the delay over the benefits appeared as a responsibility of this particular Union. A third reason for responsibility of the Union is then added. The Union was to blame because it had refused the Company's offer to institute the benefits unilater- ally right away, while preserving the refusal to bargain position. At this point the speaker spelled out the alternatives of the moment: (a) the Company could make the benefits and improvements "immediately if the Union is not the choice of a majority of you as your bargaining representative"; (b) "If a majority of you desire the Union as your representative, then the Company cannot make these changes effective without first bargaining with the Union." After again reminding the employees that there could be "a long delay" before the Board held an election, and that the employees were "being deprived of the new benefits program," the script adds, towards its close, "our desire is only that you be permitted to enjoy the new program." There then followed a 10-page detailed recital of the benefits the Com- pany had offered months ago and of the substantive improvements in working con- 27 109 NLRB 591. 23 in Blue Flash, the Board took pains expressly to exclude the situation where "the surrounding circumstances together with the nature of the interrogation itself imparted a coercive character to the interrogation." Compare: Rohlik, Inc., 145 NLRB 1236. MONTGOMERY WARD AND CO., INCORPORATED 1249 ditions given to the Union that same month but only for those stores where decer- tification petitions had not been filed. If the question had really been whether or not collective bargaining, all this had no place in the Respondent's introductory explanation. There can be no reasonable doubt that when the employees voted after such an explanation of what was being done, they were answering the question whether or not they wanted the new benefits. Occasional phrases in the script-that the employ- ees were free to vote either way, or that the Company's "concern is simply to deter- mine" whether the employees wish to continue union representation-cannot begin to offset the unmistakable, repeated and emphatic explanation that what was really at stake were the benefits.29 The Board has held, particularly in the coercive con- text of a promise of economic benefits awaiting the outcome of the result of a poll, that such an election, while representation petitions are pending before the Board, are "in derogation of the authority given to the Board to decide questions concern- ing representations brought before the Board," and illegally intrude upon the right of employees to have these matters determined by the Board.30 The August elec- tion also in each instance constituted separate violations of Section 8(a)(5) of the Act in that they were but another form of direct dealings with the the employees, designed to result in abandonment of their chosen representative, and evasion of the statutory duty to deal with the majority agent only. And, of course, the fact that in many locations the employees rejected the Union, cannot serve as a defense to the later refusals to bargain 31 3. Defenses a. Economic need One broad factual assertion upon which the Respondent largely rests its argument against the inference of illegal motive is that it did very much want to place the new benefits plan in effect throughout the chain quickly. During the negotiations it offered to do this and continue bargaining on all other matters in dispute.32 At that time the Union refused the interim arrangement; it called this piecemeal bargaining, and preferred to balance all economic demands and hasten towards a complete new contract The Union had a right to take this position, for collective bargaining inherently envisages a relationship among all items in dispute, and the make-weight value of any single concession towards winning other demands. There came a time, nevertheless, when the Union proposed another way of satis- fying this expressed desire of the Company. In April Plopper selected seven of the Union's demand items and said if the Company would concede these, the Union in return would agree to immediate institution of the benefits program, and continue bargaining. Except for a concession on grievance procedures, the Respondent would not yield on any of these items. And on May 29, lust before expiration of the con- tracts, the Union offered to agree to quick implementation of the benefits program in return for a 30 or 60 day extension of the existing agreements. The company negotiators consulted their Chicago superiors, but the chief negotiator, Scheidt, flatly rejected the offer. Whatever extenuation, if any, the Union's earlier refusal to per- mit the separate action can afford the Respondent's later action, is more than offset by the Company's rejection of the no less reasonable counterproposals of the Union, had this really been the sole objective of the Company. More important is the fact that the Respondent did not limit itself to making changes in employment conditions which, for economic reasons, it deemed urgent. By the time the May speeches were made in the Retail Clerks stores, there had been much bargaining, and conceivably, although that question is not presented here, the Company might have been free, within the law, to make the changes unilater- ally.33 But this is not what it did, and therefore all of those cases cited in support The store manager in Alamosa , who assisted in conducting the election , was asked what the substance of the preelection speech was. He replied: "To indicate their prefer- ence for the union, or not in favor of the union, with the benefits to be placed in effect in this store in a reasonable-as all other stores, or most of the other stores." "Brown and Root Caribe, Inc., 123 NLRB 1817. See also Watertown Undergarment Corporation, 137 NLRB 287. 31 Medo Photo Supply Corporation v. N.L.R.B., 321 U.S. 678. 33 Several witnesses for the Union sought to deny the Respondent ever made this offer. Their total testimony, however, shows quite clearly that this proposal was advanced by the Respondent, both in California and in Pittsburgh. 33 Bradley Washfountasn Co., 192 F. 2d 144; Crompton-Haghland Mills, Inc., 337 U.S. 217. 206-446-66-vol. 154-80 1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of an employer's right to make reasonable business changes while continuing to honor the statutory obligation to deal with an exclusive bargaining agent, are inap- posite here. It is one thing for an employer to make wage or other benefit changes after hon- estly offering them to the union in collective bargaining , without disparaging the representative and without at the same time taking steps aimed at its removal. It is quite something else to dangle the benefits out of the reach of the employees, blame the bargaining agent for their plight, and suggest, by unmistakable conduct, that the way to obtain the improvement is to turn against the union. b. Alleged loss of majority; additional findings of majority status To offset the compelling conclusions arising from all the foregoing evidence, the Respondent also sought to evade a finding of illegal conduct , at least as to some of the refusals to bargain, on the ground that at certain locations the Union was no longer the majority representative by May or June of 1963, and that the employees at some stores had already turned against the Union. It now requests a finding that, with knowledge of the possibility of such disaffection unrelated to its own activities, the Respondent honestly believed there was a question concerning representation when it decided as it did. There is an overlapping of arguments in this defense, a confusion in terms. On one hand the Respondent says that in certain stores the Union in fact did not represent a majority , and it asserts that the record evidence proves this sufficiently to rebut the presumption of continuing majority arising from the contracts and Board certificates . From this assertion-that those locals really did not represent majorities-it reasons that even assuming the Respondent intended to violate Section 8(a)(5), there can be no finding that it did so But this same evidence-supposedly proving lack of majority in the spring and summer of 1963- is also advanced as support for the Respondent 's major contention that it honestly doubted majority in such stores Proof intended to show that the Union simply did not have a majority when the refusals occurred is of two kinds ; one goes to employee sentiment-by oral testi- mony and records of dues payments, and the second points to mergers which occurred before the refusals and which resulted in locals other than the originally certified or contract ones now claiming representatives status. The evidence bearing on individual employee sentiment relates to 10 separate stores. At La Grange (145 employees) employee Barry testified she had been "dis- satisfied" with the Retail Clerks as far back as January 1963, and never "wanted" that Union to represent here; in May of 1963 there were 76 dues-paying members at this store with the record not clear as to whether this was 50 percent. At Carlinville (4 employees ) employee Ringer said the employees never went to any union meet- ing "that she knew of," that they "frequently" talked of withdrawing; she also added she had never told management of her feelings, had been encouraged to move toward decertification by the benefits speech, and had expressed herself "face- tiously." At this same store employee Hartley said there had been talk of getting out of the Retail Clerks and that she had paid her dues "reluctantly." At Southgate (375 employees) employee Stafford said she had inquired back in 1961 about how to decertify, or how to stop paying dues, and that she had always deemed the Union "worthless." At Jefferson City (60 employees) an employee testified she had resented being forced into the Union by contract since first coming into the store 4 years ago . In Kansas City ( 113 employees ) only 25 employees were paying union dues in May of 1963. In Ponca City (33 employees) Behrend, the decertification petitioner, said he filed because he "got nothing for the $3 dues ." In Richmond (375 employees ) only 73 employees were dues-paying members. In Chico (50 employees ) there were no dues-paying members. In both Richmond and Chico the Union had been certified in 1962, and no contract had been reached at either loca- tion; the bylaws of this local, representative in both stores , did not require dues of employees until a contract had been achieved . In Hillsdale ( 34 employees ) 16 were dues-paying members. In El Dorado ( 34 employees ) 7 employees were paying dues. Even detached from other proper considerations on this record, the foregoing does not suffice to offset the majority status shown by the existing contracts or certifi- cates, coupled with the Respondent 's continuing recognition of these locals at those stores. The question at issue is not concerned with membership majority, nor dues paying majority. What is involved is authority to bargain , or the willingness on the part of the employees to be represented by a labor organization . This is so funda- mental a rule as to require no further comment here . Whether or not at given loca- tion there was a majority paying dues is therefore beside the point. MONTGOMERY WARD AND CO., INCORPORATED 1251 As to the oral statements of personal feeling or sentiment by individual employees, months after the events, intended to establish their frame of mind before the conduct of their employer now said to have coerced them in their attitude toward the Union, it is a very weak reed to prove retroactively an independent rejection of collective bargaining then. Four of these witnesses were the very tools, willingly or unwillingly, of the decertification techniques. In any event, even assuming some of the isolated instances of employees who were truly long opposed to the Retail Clerks even apart from anything the Respondent may have done, such few numbers fall far short of any significant weight here. The employees in nine stores changed from one Retail Clerks local to another, by merger activities, after the original Board certificate or after the last contract had been made. In each instance the resultant local appears in the complaint as the claiming union. The Respondent asserts that the merger activities within the Retail Clerks were not valid, and that therefore there is no basis for finding majority status in the present claiming union. On this argument the facts established on the record are as follows: Local 291, certified and contract union at La Grange, merged into Local 300 on January 1, 1963. The Company was notified of the merger at that time and replied that "so far as the Company was concerned, Local 300 was the successor to Local 291. Company counsel, at the hearing at La Grange, stipulated that "after the merger of the two locals at La Grange to Local 300, the Company continued to deal with Local 300 as though it were the bargaining agent." In the course of the regional group bargaining during May of 1963, the Company called on the union negotiators to show their authorization to speak on behalf of the various local stores; in response Rodriguez, president of Local 300, delivered a letter to Scheidt saying that Local 300 had authorized the international representative to speak on behalf of the La Grange employees. The Company accepted it and continued to bargain. Local 1593, certified and contract union at Marietta, merged into Local 1059 on January 1, 1963. On January 25, the officers of both the old local and new one, in writing, advised the Company of the merger, and that the new local would "assume the duties and obligations of the collective-bargaining contract." Lowe, business agent of Local 1059, testified that all members of Local 1593 had been notified by letter, that a notice of the merger meeting has been posted on the bulletin boards at all stores-including Wards, that about 200 members had voted at the merger meet- ing, and that Local 1593 originally had 150 members while the resultant Local 1059 has 3,000 members. He also testified that the Company continued to recognize Local 1059, that he thereafter discussed grievances with management, and that the Company sent dues checkoffs, pursuant to the contract, to Local 1059. One employee, Mathews, called by the Respondent, said she had never heard of the merger. Local 209, certified and contract union at Meadville, merged into Local 1538 in May of 1962; the Company was advised of the merger in writing at the time. Marak, vice president of the new local and president of the old, testified that a notice of merger meeting had been posted in this store, that thereafter there were grievances processed, and that dues checkoffs had thereafter been sent by the Company to Local 1538. Sterritt, the store manager, testified he "assumed" the dues had been for- warded to the new local. At the close of the hearing at this location the parties stipulated that after the merger dues had been sent either to the "Retail Clerks International Union" or the "Retail Clerks Union." In March 1963 Local 1538 served notice upon the Company of intent to renegotiate the contract. At a Pitts- burg bargaining session later Local 1538 produced authorization for higher union officials to negotiate on its behalf; no questions were raised by the Respondent. After the company election at this location in August the Respondent offered to bargain with Local 1538, and in December offered a contract directly in the name of that local. Local 1512A was certified in Southgate in 1959, at Royal Oak in 1947, and at Port Huron in 1956. It had contracts for these stores extending into 1963, and in 1960 merged into Local 876. The parties stipulated that thereafter the Respondent "recognized Local 876 as the bargaining representative for the employer's South- gate, Royal Oak, and Port Huron Retail Stores." 34 During 1962, because of the terms of the existing contract, the Respondent bargained with Local 876 on the question of whether it could operate on Sundays without paying double time. 94 In view of this stipulation and the fact that the Respondent bargained with Local 876 during 1963 and never raised any issue concerning the 1960 merger until the hearing at Southgate in January 1964, its offer to prove that the merger had been invalid was rejected. 1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 782, certified and contract local at Maryville, merged into Local 988 in April of 1961. The parties stipulated that the Respondent "recognized the Union after the transfer." Woodbury, business agent of Local 988, testified without con- tradiction that from 1961 through 1963 dues checkoffs were sent to Local 988 35 Local 454, certified and contract union at Alamosa, merged into Local 7 in April of 1962. In a letter dated July 2, 1963, to the Board's Regional Office in response to advice that the decertification petition had been filed here, the Respondent's labor relations director wrote: Also enclosed is a copy of the agreement that was in effect between the Com- pany and the Union. You will note that the contract was executed with Local 454 of the Retail Clerks Union. Approximately in April, 1962, a merger occurred between Local 454 and Local 7 of the Retail Clerks Union. Since 1962, the Company has dealt with and recognized Local 7 as the successor to, Local 454 and as the representative of the employees. The recent bargaining negotiations have been with Local 7. The contract as indicated expired on June 1, 1963. Dues checkoffs were thereafter mailed to Local 7. Local 1659 was certified in 1950 and had a contract expiring on June 1, 1963, at Petoskey. Sometime before April 22, 1963, Local 11 became the majority repre- sentative at this store. In a letter dated April 22 the Company's labor relations. department advised the store manager : "Local 11 of the Retail Clerks' Union has provided evidence to the Company that they represent a majority of the employees in the store. Therefore, the Company is recognizing Local 11 as the collective bargaining agent." A letter from the Company to Local 11 on May 2 also reaffirmed the contract provisions for continued checkoff of dues to Local 11. At Hillsdale, the Retail Clerks International was certified in 1956 and by 1963 there was a local union in the picture. The record does not indicate when it was formed, but a copy of the contract which expired at this location on June 1, 1963, was produced by the Respondent and shows Local 10 as the recognized bargaining agent. In all 38 of the stores covered by the Section 8(a) (5) allegation of the complaint the original exclusive bargaining agency was established by Board certification. As of 1963, however, this status rested, in almost all instances, upon both the certifi- cates and the contracts which had been executed pursuant to the certifications. The- regularity of the majority status and of the Respondent's recognition of these many locals, therefore, was also evidenced by the effective force of these collective- bargaining agreements. In turn, these same contracts constituted proof, in this case, that the locals involved in each instance in fact continued to represent a major- ity of the employees in each store unit when they expired on June 1, 1963, and shortly thereafter. The Board has long held that there arises a presumption of con- tinued majority from either its certificate or from a regular exclusive recognition, agreement predicated upon it.36 Fundamentally this principle recognizes the neces- sity, in the interests of stable and peaceful labor relations, for honoring bargaining, relationships duly established. To subject all such certificates or contracts to an affirmative burden of reestablishing in every instance the Union's authority to repre- sent the employees would place an intolerable burden on continued harmonious collective-bargaining relations and expose a duly selected majority representative, long after the commission of unfair labor practices by an employer, to an impossible prerequisite for redress. It is for this reason that an employer may only question the Union's continued majority at the end of a contract term if it does so in good faith and on the basis of reasonable grounds shown.37 The most significant aspect 35 At this location the General Counsel's offer to prove that the 1961 merger had been valid was rejected 36 Celanese Corporation of America, 95 NLRB 664 ; Shamrock Dairy, Inc., 124 NLRB 494, enfd. 280 F. 2d 665 (C A D.C.). 37 Carter Machine and Tool Co., 133 NLRB 247: Two factors are essential prerequisites to any finding that the employer raised the majority issue in good faith where a union has been certified by the Board. There must, first of all , have been some reasonable ground for believing that the Union had lost its majority status since its certification. And secondly , the majority issue must not have been raised by the employer in a context of illegal antiunion activities, or other conduct by the employer aimed at causing disaffection from the union or indicating that in raising the majority issue the employer was merely seeking to gain, time in which to undermine the Union. MONTGOMERY WARD AND CO., INCORPORATED 1253 of this question in this case is that the attack upon the presumption of continued majority flowing from the contracts and certificates was not voiced until many months after the events, and that it is now raised in the face of positive, very persuasive indi- cation of an intent to remove the Union from the stores without regard to whatever its representative strength may have been. The evidence, set out above, of the Respondent's treatment of the successor locals in each instance shows clearly that it believed the merger activities to be perfectly proper and valid at the time, that it recognized the new locals as majority represent- atives, and that it regularly dealt with them as it had done with the predecessors. More important, in terms of whether or not the principle of presumed continued majority status applies here, is the fact that its total proves a virtual agreement that the new locals had in effect replaced the earlier ones as party to the contracts. In some instances it was shown that grievances were processed; this must have been pursuant to the procedures set out in the agreements. But most persuasive is the fact that after the mergers the Respondent collected dues from the employees and forwarded them to the successor locals. But it was only if these locals were enti- tled to contract rights that the checkoffs would have been honored, or, indeed, have been lawful at all. Written notice to modify the contract, under a specific provision, was served by Local 1538 at Meadville, and the Respondent found nothing wrong with it. At the various negotiation conferences in April and May it demanded proof that centralized bargaining had in fact been authorized for each store. In each instance such proof was given, in writing, by the offices of the locals involved, including those which were successor unions. And again, by accepting such authori- zations and proceeding with the negotiations, the Respondent impliedly admitted .they held the expiring contracts. I conclude that neither the oral testimony of several employees, nor the fact that at certain locations less than one-half the store employees were paying dues in May of 1963, nor the evidence of certain mergers of locals having occurred while the contracts were in effect and long before the Respondent embarked upon its planned program to unseat the Union at a number of stores, suffice to rebut the proof of majority status by the various locals with which the Respondent was dealing in the spring and summer of 1963. Accordingly it is found that at each of the following locations the respective local set opposite the locations, by virtue of Section 9(a) ,of the Act, was in May of 1963 and now is the exclusive bargaining representative of all the employees in the previously indicated units for purposes of collective bar- gaining in respect to rates of pay, wages, hours of employment, and other condi- tions of employment: Local Local La Grange ----------------- 300 Richmond--------------------- 1179 Carlinville----------------- 1053 Chico------------------------ 17 Southgate ----------------- 876 Marietta ---------------------- 1059 Royal Oak ---------------- 876 Meadville--------------------- 1538 Port Huron --------------- 876 Maryville --------------------- 988 Jefferson City------------- 782 Alamosa---------------------- 7 Kansas City --------------- 782 Petoskey---------------------- 11 Ponca City---------------- 809 Hillsdale---------------------- 10 El Dorado ---------------- 809 As support for the contention that the refusals to bargain were based on reason- able grounds and a good-faith doubt of majority status at the time, all the foregoing evidence is of very little, if any weight at all. Company agents, store managers at least, did know from their payroll records how many employees were having their dues checked off They could not know how many others were paying directly. But no representative of the Company ever voiced concern over this matter, it was not until the hearing reached the various cities that any mention of the subject was made. But most revealing of bad faith, particularly with respect to the argument now based on the old mergers, is the fact that the Respondent even attempted to come to terms with these very successor locals in some stores after its total scheme had failed to win open rejection of the locals by the employees in the August elec- tions. In all the conferences and correspondence preceding the start of the hearing in October, the only grounds advanced for refusing to bargain were the decertifica- tion petitions. It is quite clear that had the Union accepted the Company's pro- posals by early May, before the benefits speech and decertification brochure were written, the Respondent would have executed new contracts with every local with which it was then negotiating, including the successor locals now under attack. As will appear below, after the August elections, Labor Relations Director Scheidt wrote to Local 1059 at Marietta, Local 988 at Maryville, and Local 7 at Alamosa, 1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and invited each of them to resume bargaining, despite his earlier refusals. But these are three of the very locals which he now claims were never lawfully entitled to exclusive recognition. He testified that as of the end of the hearing in May 1964, he was discussing contract terms with the local unions at Maryville and Mead- ville, both locals which resulted from past mergers. Local 876 was established in 1960 at Southgate and Royal Oak and in the 1964 hearing the Respondent wanted to inquire into the validity of that old merger. But shortly before the hearing started the Respondent entered into a strike settlement agreement with that same local for these two stores. And finally, at the very time he was arguing an inherent disability in Local 1059 as bargaining agent for Marietta, Scheidt said he had resolved all differences there with a signed contract with that same local38 c. Claimed reasonable grounds for questioning majority The same mind which conceived, directed, and supervised the principal manage- ment activities now appearing as the prima facie case against the Respondent, also made the decision to discontinue bargaining at these many locations. Labor Rela- tions Director Scheidt was the guiding authority in all these matters. He under- took, as a witness, to explain, as properly motivated, all that management representa- tives did in the stores throughout this period. Denying that an intent to avoid col- lective bargaining was ever in his mind, he stated at great length the basis of his belief that on the critical dates the local unions no longer represented a majority of the employees. He contends-and this is the Respondent's heart defense to the complaint as a whole-that the facts as he knew them are reason enough for find- ing that his decision in all instances comported with what a reasonable and honest man would do in the circumstances, despite any suspicions that might arise from other evidence. His statement, addressed to 37 separate stores, was a very long one; in substance he repeated the same factual assertions as applicable to most of them, and the char- acter of his testimony, or its probative value, is virtually the same throughout. No, useful purpose would be served by reporting here, in repetitive detail, the consistent refrain appearing in his long recital. If these stores represented 37 separated cases and none bore a coherent relationship to the rest, or if there were a meaningful difference in the asserted grounds for refusal among the various locations, each statement of reason should, and would be considered independently. Instead, as the allegation of the complaint is that a repetitive and unbroken pattern proves a pervasive illegal objective, as the defensive assertions for all the stores are uniform, and as the total conduct emanated from one mind, it will suffice to consider Scheidt's long explanation as a single statement of position. This will do justice both to his basic contention and to the real issue presented. Scheidt said that in each instance he considered the fact that a decertification peti- tion had been filed. For seven stores-Marietta, Woodland, Modesto, Meadville, Chico and San Luis Obispo-he advanced no reason other than this. For seven other stores-Alamosa, Anchorage, Butler, El Dorado, DuBois, Madera and La Grange- he said another factor of importance to him was that the Board certification had been issued long ago; of these the oldest was dated 1956, the most recent, 1961. In a few instances he gave special reasons in addition. In La Grange, where the local was certified in 1959: because that union had failed to win elections before 1959. In Madera: because when the local union was recertified in 1961 it had been pursuant to a decertification petition. In Portland, where the complaint was 8 years old: because in 1957 a decertification petition had been filed and then withdrawn. In Petoskey. because in February 1963, when he had recognized the Union pursuant to a card check and reaffirmed an existing con- tract, the Union's majority had been only 26 to 21. In Las Vegas: because the Union had been certified in 1962 pursuant to a decertification election In Chico: because the local had failed to win an election before the one which resulted in its certification in 1962, and because thereafter no contract had been signed In Rich- mond: because when the employees voted for the Union in 1962 they had not really desired collective bargaining, but only wished to express criticism of the then store as Celanese Corporation of America, supra: . . . the answer to the question whether the Respondent violated Section 8(a) (5) of the Act . . . depends, not on whether there was sufficient evidence to rebut the presumption of the Union's continuing majority status or to demonstrate that the Union in fact did not represent the majority of the employees, but upon whether the Employer in good faith believed that the Union no longer represented the majority of the employees. MONTGOMERY WARD AND CO., INCORPORATED 1255 manager, who had made one of the sales girls pregnant. For Richmond, Scheidt gave an additional special reason: "And the fact that no agreement had been . reached and the fact that the Union had done nothing about it in the way of eco- nomic activity, led me to believe that they were not probably strong enough to take any action against the Company." Apart from the foregoing, Scheidt said he relied upon written answers to ques- tionnaires he had distributed to the managers of unionized stores in January 1962 and January 1963. The interrogatories asked the managers to report their knowl- edge of employee union activities and their own opinion, in conclusion, of the local Union's strength. Typical questions: how many employees were union members; how many were having dues deducted; how many grievances had been processed; how many union meetings had been held and how well had they been attended dur- ing the prior years; what was the manager's opinion as to the employees' "extent of interest in the Union," and as to how they would vote in an election, both with and without "reasonable campaigning by the Company." Scheidt himself knew nothing of the truth or falsity of any "facts" thus reported to him by the store managers, and the opinion certainly were somebody else's . He said these questionnaires, in part, formed the basis for his doubt of majority status with respect to about 17 stores, and he showed the documents themselves into evidence. He also said like questionnaires had been distributed to the other stores here involved and where he also refused to bargain, but did not explain why the remainder-he said a "vast majority" had been returned-were not used by him in his calculations. The remaining grounds advanced by Scheidt compared exactly to these written reports, except that they consisted of oral instead of written reports made to him by store managers and others. He related a number of conversations in which the managers told him they doubted majority in certain stores in 1963 and, in some instances, also told him their reasons for such conclusions. This part of Scheidt's testimony-and here again he gave such justification with respect to about 16 stores- was phrased largely in generalities, conclusions, and sheer expressions of opinion by others. Speaking of all these conversations, the witness admitted he had no knowledge himself of the truth of anything that came to him thus over the telephone. All of this indirect testimony and hearsay reporting must be considered in the same light, in the ultimate evaluation of Scheidt's testimony , against the objective facts proved on the record. There would be no purpose, therefore, in repeating all of it here. The following excerpts are illustrative of the tenor and character of his story. Dowland, acting manager at Carlinville, told him that all the employees had signed a decertification petition sheet and she could not see why there should be any Board election . In listing his reasons at El Dorado, Scheidt added: "I had informa- tion beyond that, conversations or correspondence or something else." For Long- view: "I secured the opinion of the store manager with whom I had the conversa- tion, Mr. Stonberg, and he expressed, during that conversation, his opinion as to number of people that supported the Retail Clerks' union." Lloyd, company labor relations lawyer in California, told him "there were 15 people that he believed would not support either union, that they were antiunion employees." Muskegon: "I asked him [the store manager] how many members the Union had in his opinion. And he said that he believed there were 38 members of the Union at that time." Petoskey: . he [the store manager] stated that as far as he was concerned, the employees did not want or the majority of them, at least, did not want to be repre- sented by the Union ...... Scheidt said he asked the assistant manager at Richmond "as to the relative status of the Union," and that the man said "it was the consensus of opinion that the Union represented at best 35 to 40 percent of the employees." The store manager at DuBois had written in a letter on September 7 that 18 employ- ees had signed in support of decertification. Scheidt said he telephoned to ask the manager how he knew this, and that the manager "told me he had been told that number by an employee . . . and that I could act upon it." On the telephone the store manager of Portland "estimated that the union's strength at best had to be about 30 to 35 percent support of the store." Lloyd, the company lawyer in Cali- fornia, told Scheidt by telephone that the decertifying petitioner at Chicago had told Lloyd that more than half the employees there had signed in support of the two peti- tions filed. From Mt. Vernon: "He [the store manager] told me at that time that he believed that 25 of the employees would not support the union, and he mentioned, I believe, his figures were, there were 15 stalwart antiunion people in the store, and from his acquaintance, he felt that there would be another 8 or 10 that would not support the Union in view of the union-security provision which was a full union shop." 1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the basis of the record in its entirety I find that the Respondent's refusal to bargain in all the stores involved was motivated by a central antiunion design, as alleged in the complaint, and was not grounded upon an honest and reasonable doubt of majority status. Scheidt admitted that as to some stores the sole basis of his con- clusion that the local no longer represented a majority was the pending decertification petition. The question as to these therefor is simply whether his activities reflected above suffice to prove that this is not the case of an employer doing nothing more than react to a Board proceeding. And the conclusion is fully warranted that the Company largely was responsible for the petitions; any doubt of its pervasive plan and intent is entirely dispelled by the August elections. Had Scheidt been concerned solely, as he now claims, with the question of majority status, he would simply have had asked the employees this when he did poll them. Instead he made them choose between union and benefits. But this is precisely what is meant by raising a question of majority in bad faith. Particularized reasons, which Scheidt said applied to specific stores, are on their face most unpersuasive. Facts such as the abortive filing of a decertification petition in 1957, the type of petition which resulted in union majority in regular Board con- ducted secret elections, the asserted cloud upon the clear results of a proper election cast by a manager's personal misconduct with a sales girl, the failure of a local union to prevail upon the Board to amend an outstanding certificate-all before the Respondent itself extended exclusive recognition upon a card check 39-all these are facts which must be weighed against Scheidt's preparation of the decertification brochure before sending his men into each of the stores to tease the employees with the benefits which nonunion employees could quickly enjoy, and against the benefits speeches themselves, which blamed the Union for depriving the employees of quick benefits. The isolated expressions of old antiunion sentiment, voiced by occasional employees long after the coercive elections of August, must be considered together with the extensive evidence of widespread conduct of store managers in inviting them to resign from the Union, in assisting them in the mechanics of decertification activi- ties, in openly deploring the very existence of the Union in many stores. In his letter to the International Union, on July 17, when Scheidt announced his refusal to bargain for 24 stores, the only basis he stated was the fact that decertifica- tion petitions had been filed. All the later reasons-too few employees paying dues, old mergers of locals, employees in distant locations telling managers long ago they always disliked the Retail Clerks-appear as an afterthought; none was ever men- tioned until the effective removal of the Union had been completed When, at the hearing, Scheidt advanced as additional grounds, the opinions of store managers that they believed the unions to be weak, he added nothing of substance to the sole reason advanced long ago. Most of these conversations he said he had with local management took place at about the time he made his decision, and, when the managers explained the basis for their own conclusions, in most instances they reverted to the details of the decertification movements. This testimony therefore was a virtual restatement of the reason set out in Scheidt's original letter, that the refusals were based on the petitions. The questionnaire reports from the store managers, dated February 1962 and February 1963, do pertain to events preceding the employer activities here in review, and the consequent decertification movements. On their face they purport to reflect what employees did and said during the years 1961 and 1962. But what employees in fact did and said during those periods, how they "felt" and what their leanings in union matters were, has in no sense been shown on this record. From Scheidt all of this was pure hearsay, and as the record stands there is no probative evidence at all of any "facts" of this kind that the Respondent could now point to in support of the defense that it acted reasonably.40 To circumvent the failure to prove that anything at all had happened except the activities leading to the decertification petitions, the Respondent argues that it does not matter whether the manager's reports were true or false, and that the only fact to be considered here is that Scheidt had received these documents and acted upon them. Where the good faith of a highly experienced labor relations expert like Scheidt is put in issue, this is too superficial an argument to carry significant weight. If there were any solid basis for these reports, if the Respondent had truly been con- cerned with such alleged activities, or inactivities, of its employees in earlier years, 89 A special reason advanced for refusing to bargain at Petoskev 40 "What we have is: witness A testifies he overheard B state that C said such and such. Obviously A can prove what B said. But the decisive thing is what C is supposed to have said. And A cannot prove what C said by stating what B said C said." General Tire of Miami Beach, Inc., et al. v. N.L.R.B., 332 F. 2d 58 (C.A. 5). MONTGOMERY WARD AND CO., INCORPORATED 1257 the place and the time to establish the real facts was while evidence was being received at these various locations. In most instances these same managers were on the stand, and Scheidt or his assistants questioned them. There the General Counsel would have had an opportunity fairly to inquire whether there was reason for the managers to report as they did to Scheidt. As the record stands, instead, the Respond- ent is in effect asking that Scheidt's antiunion activities be weighed against assertions of fact which were never proved, and against testimony of witnesses who were never called. Fairly viewed, what the written reports plus the oral conversations with the store managers add up to is that the managers believed there was a question concerning representation and Scheidt, relying on their opinion, acted upon it. After all, the most significant statements appearing on the reports are the opinion of union strength in any possible election, or the "extent of interest in the union." But a respondent cannot escape the compelling inference of illegal purpose arising from his own con- duct, merely by asserting that the right hand acted on advice of the left. And particu- larly must this be so when the principal company official, tainted with the imprint of improper conduct, and who articulated the refusal to bargain, assigns the responsibility to a lower supervisor who was never given authority to act in the matter When Scheidt says he questioned majority because a store manager doubted majority, he is really saying it was the manager who made the decision, and not he But if the managers decided the thing, it is they who should have been called to exculpate the Respondent, and not Scheidt. In sum, the illegal conduct started with the May benefits speeches in all the stores, while the contracts were still in effect and while the appearances of good-faith bar- gaining were being maintained. I find that starting at that time, and continuing there- after in all the stores listed in the complaint except Baker, the Respondent unlawfully refused to bargain with the majority representatives and committed unfair labor prac- tices in violation of Section 8(a)(5) of the Act. I also find that by polling the employees at the Baker store in August, after an agent of the Company had given the same prepared speech used at all the other company elections, the Respondent vio- lated Section 8(a) (1) of the Act. The literal withdrawal of recognition occurred later, but these were only continua- tions of the basic disregard of the statutory duty to bargain which started in May everywhere. The first broadside refusals came on July 17, in Scheidt's letter to Plopper, and it removed 22 stores from the negotiations. The pattern was consistent throughout. It was started in Ponca City, where a Board election was held on June 6. In addition to the usual benefits speech given here 2 weeks earlier, an official was sent to deliver a specially prepared speech to the employees the day before the election. He spent much time telling them that the new benefits had already been given in nonunion stores and would have to await bargaining in Ponca City if the Union won tomorrow. In substance this speech foreshadowed the one given later in 26 stores before the company elections in August. The next day the Company unilaterally instituted the benefits, and carried out the promise which the decertification petitioner, repeatedly urged by the store managers, had been conveying personally to individual employees before the balloting. The illegal refusal to bargain that day is clear 41 There was a repeat performance in Las Vegas, when the Board conducted an election on June 21; again an official went to the store with a prepared speech, given on June 20, and effectively delivered the message that quick new benefits awaited rejection of the Union. And again the Union lost and the promise was carried out. The refusal to bargain here was clear that day. Company election were held at San Luis Obispo. Longview and Richmond. The refusals to bargain further had been articulated earlier for San Luis Obispo and Long- view; in Richmond the outstanding Board certification expired on July 31, and, in a formal sense, the literal refusal to bargain came on November 20. But rejection of the Union at all three of these locations was clear when the election took place. In Longview and Richmond the Union lost, the benefits were quickly given, and there has been no bargaining since. In San Luis Obispo there was no bargaining for a long time. In four stores petitions were not filed until after the national settlement was made on August 7, in Chicago. It was there agreed that as soon as any store group voted to ratify, the substantive terms of the new contract would be put in effect, with actual execution of the agreement left as a minor matter. In DuBois, Punxsutawney, Mt. "Four months earlier the Ponca City store manager had reported to Chicago on the questionnaire concerning the extent of union activities by the employees. He had closed his report with- "I firmly believe we could remove the union in this store if we get started now and if I could know exactly what I can and cannot do." 1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Vernon, and Chico, the employees quickly voted to ratify, and the new terms-includ- ing the all important new benefits program-were put in effect. Before the document could be delivered and signed, decertification petitions were filed and in each instance the Respondent refused to sign as agreed. The union-security provision of the new agreement was held in abeyance until the actual signing, but about August 30, with knowledge of the ratification votes and with the new economic terms being installed, a company notice from Chicago was posted in the stores at DuBois and Mt. Vernon, informing the employees of the innovation that once the contract was signed, but not before, all employees would be required to join the Union. The earlier contracts con- tained only a limited union-security provision. Again the pattern of the Respondent's program is clear, even after the settlement with the International Union. The pattern throughout the many stores shows that Scheidt's basic purpose was to rid himself of the obligation to deal with the Retail Clerks wherever possible, to act independently in putting the new benefits program in effect, and to avoid giving any credit for them to the Union. The decertification petitions in these four stores were an integral part of the overall activities of the Company. Give or take a few details, the oral evidence of the petitions and signature activities here fits into the total picture. Against this background, the testimony of Winski, a company lawyer who went to Punxsutawney after the petition was filed, and of the store manager, that they "knew" the local union had lost majority status then, carries little weight Winski said he "formed an opinion" from his interviews with the employees, all, of course, after the full impact upon them of the company activities set out above 42 Manager Anderson was asked why did he doubt majority after the petition had been filed: "It is very simple, sir, I am the store manager and it is my job to know what goes on in the store . . . the basis of my information was common sense ...." "It would be nothing more than a registered guess or registered suggestion on my part." He added he could distinguish between union adherents and others because "I can tell a Democrat from a Republican most of the time." At Pueblo the decertification activities followed within minutes of the benefits speech. This location is included among the many listed in the Company's letter of July 17 telling the Union that because of the pending decertification petitions it would no longer bargain. The contract in effect, however, had until February 1964 to run, and after it expired the Company again very definitely refused to negotiate. At the hearing Scheidt said this location was included in his July 17 letter by "mistake." It was a significant mistake, for it indicates almost conclusively that all Scheidt had in mind, when he withdrew all these locations from the bargaining table, was the fact that a decertification petition had been filed in each store. If, as he said at the end of the hearing when he produced a number of documents as justifying his many deci- sions, he had in fact examined his files in July 1963, it is not likely he would have fallen into this "mistake." In Sacramento the contract expired on November 1, 1963. The benefits speaker in May had told the girl who wanted to know how "to be out from under the union" to see the manager for information. The decertification brochure explained how petitions must be filed towards the close of the contract year, and in this instance it was filed on August 5. On November 20 the Company refused to bargain further. This refusal, too, fits into the pattern. Lastly, in Salisbury the employees petitioned the local union to know why they were being "denied" the new benefits, and in August filed a petition. The current contract here expired in January 1964 and a second petition was filed in October. The Respondent then refused to bargain here also. Each of the 34 specific refusals to bargain set out above was a violation of Section 8(a) (5) of the Act by the Respondent. The many invitations by store managers to individual employees to discontinue their union dues or to resign from their local union, too numerous to restate here, constituted independent violations of Section 8(a)(1) for which the Respondent is responsible. In the context of the record as a whole, wherever a store manager or other company official assisted employees to pre- pare antiunion signature sheets or formal decertification petitions for filing, they also 42 From Winski's testimony: As I said, I was told by more than a majority of employees at this point that as far as they personally were concerned, their dissatisfaction stemmed far back, as a matter of fact, and that the employees that were there, this was said by them, that when the union was certified, had been dissatisfied from that time. Other employees, of course, their dissatisfaction stemmed from the time that they came into the unit. It was the general reaction that over that period of time they could see nothing that the union had done constructive for them and the feeling was that they were paying dues and getting no benefits. MONTGOMERY WARD AND CO., INCORPORATED 1259 committed independent unfair labor practices in violation of Section 8(a)(1). And each of the 26 elections conducted by the Company in August was coercive upon the employees in violation of Section 8(a)(1); in addition, in all those elections except Baker, the holding of the election constituted a direct violation of Section 8(a)(5). Coercion of Witnesses and Interference with Board Process From the start of the hearing and continuing at many locations thereafter, the Respondent committed further unfair labor practices. While preparing for the successive sessions from city to city, the lawyers who tried the case-Scheidt, Brown, Hanley, Winski, and Michas-questioned a great many employees In these inter- views, over and above whatever may be the limit of proper and permissable question- ing of employees in the circumstances concerning their knowledge of or participation in union activities, they illegally interfered with employees' statutory rights under Section 7 of the Act, "which includes protection in seeking vindication of those rights free from interference, restraint and coercion by their employer." 43 In addition to asking employees what they knew of alleged illegal activities charged against com- pany representatives, the lawyers also asked for employee affidavits that had been given to Board agents, indirectly but quite clearly sought to learn in advance of the trial what the testimony of the witnesses was going to be, and threatened them with ,disciplinary action if they refused to cooperate with the lawyers in these respects. In a number of instances employees were laid off a few days for refusing to answer these interrogations, with direct notice that if they persisted they would be perma- nently separated. Each such employee, after the threat or after suffering a discipli- nary layoff, yielded to the lawyers' pressure. The basic refusal-to-bargain allegations of the complaint are fully supported by the evidence of activities long preceding the hearing, but these were the same per- sons-especially Hanley and Scheidt-who engaged in the activities which revealed rejection of the very principle of collective bargaining in the Respondent's relationship with the Union. Their further misconduct later, which interfered with "the Board's process in carrying out the statutory mandate to protect such [Section 7] rights," there- fore appears as still further evidence of a fundamental refusal, by this Respondent, to comply with the proscriptions enumerated in a now long-established congressional statute. And the consistent pattern of pretrial interference and coercion of employ- ees, probably explains in part, at least, the clear hostility of a great number of employee witnesses called by the General Counsel and their rejection of unequivocal affidavits previously signed. The following testimony is all credited and was given in each instance by the employee involved. Except where indicated by footnote reference, it all stands uncon- tradicted. And as will appear below, where Hanley and Winski did comment on this activity at the close of the hearing, they offered only a play on words, and not real contradiction. On October 1, a week before the hearing at La Grange, the first store location where testimony was received, Hanley asked employee Walthers had she given an affidavit to the Board and "if he could see it." She showed it but refused to part with it, and Hanley then asked "if he could make a copy of it." She permitted him to do so. Hanley then discussed the contents of her affidavit with her 44 Before the hearing concluded at La Grange the General Counsel moved and was permitted to amend the complaint to add allegtaions of independent violations of Section 8(a)(1) of the Act based on this testimony. At the Respondent's request the hearing was continued to permit the Respondent to consider this development. Starting with Marietta, the third of 29 store locations where testimony was taken, in advance of the hearing the Respondent distributed a form questionnaire to every employee in each of the many stores and asked each one to fill it out and sign. Among the 14 questions asked, 3, on the last page, are as follows: 9. Have you given a written statement or have you been interviewed by a representative of the National Labor Relations Board9 10. If the answer to question 9 is "yes," did you sign a statement9 11. If the answer to question 10 is "yes," do you have a copy of that statement? The day before the hearing in Marietta, Hanley asked employees Malone, Myers, and Miller whether he could see their affidavits to the Board; all three refused. Here, 48 Johnnie'a Poultry Co., 146 NLRB 770. 44 At the close of the hearing in Chicago, 7 months later, Hanley testified that he did ask Walthers, in an office, did she give an affidavit and did she have a copy, and that when Walthers said yes, be asked "if she had any objection to my looking at a copy of her affidavit." 1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD also, Brown, a company lawyer, asked Matthews whether she had given an affidavit, and could he see it. A few days before the hearing in Butler, Scheidt discussed employee Pugh's answers to her questionnaire, asked did she have a copy of her affidavit to the Board, and said: "He would like to see it, but that it would be entirely up to me if I gave it to him." She refused. He asked the same thing of employee Gallagher: "as to whether he could see my statement or not?" At Meadville Union Steward Marak refused to answer the critical questions 9, 10 and 11 on the questionnaire. He was later interviewed by Hanley, who asked had he attended union meetings, and why did he refuse to answer those questions. Marak said it was an interference with his "privacy." Hanley also interviewed employee Kaiser, asking had he spoken to a Board agent, had he given an affidavit, did he have a copy, had he signed a decertification petition. Kaiser refused to answer. Employee Miklovic answered only the first few questions on the questionnaire, and claimed he could not recall with respect to the rest. Hanley told him to put that in writing, but Miklovic refused. On orders from Scheidt all three of these men were laid off for a few days for such refusals, and advised the layoffs would be permanent if they persisted. They then had a change of heart, answered, and were returned to work. Still at Meadville, Winski, the other company lawyer, asked employee Mazick did he belong to the Union, for how long, had he gone to meetings, had he signed the petition circulated by Canney, the tire department supervisor. At Punxsutawney, Rorabaugh refused to answer any questions on the questionnaire; he said he wished to stay "neutral." Rorabaugh repeated the same position of neutrality when Lawyer Winski interviewed him after the refusal; he still persisted in answering nothing. The manager laid Rorabaugh off for 2 days in consequence of his refusal and the employee then changed his mind and answered whatever he was asked. Winski also spoke to employee Nichol here, because she had refused to answer some of the questions; Winski spoke to her of disciplinary action in consequence.45 The Respondent called Stafford and Smith, the principal actors towards decertifica- tion, as witnesses at Southgate. While questioning them, Respondent's counsel had in his hands photostat copies of their affidavits to the Board. Each witness had asked for copies from the Board's Regional Office sometime after signing them. Stafford testi- fied she had never parted with hers. Smith said Murdock, the store personnel manager, asked her for both affidavits and that she gave them to Murdock, who had photostat copies made. Smith also said that on an earlier occasion she had herself showed the affidavits to the personnel manager. In Muskegon, Hanley asked employee Murphy if he had given an affidavit and did he have a copy; Murphy said he did not have a copy. Hanley also asked Bellamy had she signed and could he see her copy. She refused to show it to him.46 At Hillsdale, Gossman, a union steward, refused to answer any part of the question- naire, and Hanley told him a layoff would be recommended if he continued to refuse. He gave Gossman time to reconsider, and the man changed his mind. Hanley also asked Smith, another steward, had she signed, did she have a copy, and would she "object to him seeing a copy of the statement." Smith refused and said she thought it to be "confidential." Employee Sheely answered only some of the written ques- tions; he was warned by both Hanley and the store manager. Still refusing, he was laid off for 2 days. Sheely then thought it over and answered all questions. Company Lawyer Michas went to Kansas City. He asked employee Halula if she had given an affidavit, did she have it, "I would like to see it." She refused to show it. Michas also asked employee Griffith at Maryville had she signed a statement, and "he asked me if I cared for him to see it." She said she did not care for anyone to see it. 45 Long after the hearing at Punxsutawney, Winski recalled Rorabaugh had refused to answer questions ; he said he asked whether the written benefits speech script received in evidence were really what had been said by the benefits speaker. He said he asked nothing more than the preliminary questions, but then admitted he asked questions other than what appeared in the printed questionnaire , whether the new company benefits has been discussed at the union meetings, and whether the employees were paying union dues. He also said Nichol had refused to say whether the manager had participated in circulating a petition. "'Hanley testified he only asked Bellamy did she have a copy of her affidavit ; he denied asking her for it. Bellamy's testimony is consistent with the pattern of activities by these lawyers ; this, plus so much other undenied testimony of Hanley asking for these affidavits elsewhere, makes his denial here unpersuasive. MONTGOMERY WARD AND CO., INCORPORATED 1261 When the Board's field examiner arrived at Maryville to investigate this case, the store manager read a prepared statement to each employee as he ushered them into a room for interview and presented each to the field examiner personally. Included in the prepared statement was the following: I wish to make it clear that you do not have to talk with Mr. Lucero or sign any statements. The law does not require this, nor does the company .... If you do sign a statement, however, make sure that it states exactly what you intend and if it does not, insist that it read exactly as you intend it to .... Likewise, if you do sign a statement, and again you are encouraged to do this, ask Mr. Lucero in advance for an exact copy of your statement. You should have a copy of anything you sign in writing and if it becomes necessary foi the company to further investigate this matter, your signed statement will be an accurate record of your knowledge of this situation. As each employee emerged from the interview, the store manager asked if he had remembered to obtain a copy of his statement. The manager of the El Dorado store read this same statement to every employee before he was interviewed by the Board investigators. At this store, also, Michas, the lawyer, asked employee Titus did she have a copy of her affidavit, and would she "bring it in to him." Michas also asked employee Barker did she have a copy of her affidavit, and "he told me if I found a copy to bring it up ... so he could read it." At La Junta, Lawyer Brown told employee Angleton she could be fired if she refused to answer certain questions. Angleton persisted, was laid off 11/2 days in consequence, and then answered and was permitted to remain. In this instance, the testimony of the witness in its totality makes it rather clear that Brown limited his inquiry to Angleton's knowledge concerning the decertification activities and who had really carried them on, or stimulated them. Angleton seemed to admit the lawyer's insistence did not relate to matters concerning Board affidavits as such. At Las Vegas the store manager called a meeting of all employees the day he learned a Board field examiner had arrived in town. He spoke from a prepared state- ment read to him over the telephone from Chicago, but said he had mislaid the docu- ment. Among the things he said was that some employees had been invited to a motel to be interviewed and that "whether they wanted to, they could and if they did not want to, they didn't have to ...... Every instance set out above in which a company agent requested an employee to show his Board affidavit constituted a direct violation of Section 8(a)(1) of the Act and it is so found.47 And it matters not that in one case the lawyer asked for the affidavit outright and in another asked the employee did "he wish" the lawyer to see it, or would "he object" to showing it, or did "he care" to do so. The message was clear in every interview, and the coercive effect upon the employee, of which the Board spoke in the Grant case, is not lessened by indirect phrasing of the same thought. A greater number of employees were personally asked whether they had signed Board affidavits, and this is one of the specific inquiries included in the questionnaire which all employees were asked to answer and sign. In some situations reported above, it is clear that the thieats of discharge and the disciplinary layoffs resulted from refusals to answer this question among others. In some instances, as in the case of Attorney Brown's questioning of Angleton at Las Vegas, it may be that the economic retaliation for refusing to "cooperate," as the Respondent puts it, was to enforce "loyalty" in investigations unrelated to whatever employees might have told Board agents, or even to testimony which they might later give. The Board has held that in preparing to defend against unfair labor practice charges an employer may inquire whether a person did give a written statement. Of course, the lawyers did more than that; they also asked did the employee have a copy. If the rationale for permitting the question-did you sign a statement?-is so that the Respondent will know whether to ask for it during a hearing for purpose of cross-examination, the excuse cannot apply to the next question-do you have a copy' A copy will surely be available at the hearing, for that is why the field examiner took it in the first place. What can be the reason for asking the employee does he have a copy, in this area, and therefore what must necessarily be the effect of such inter rogation upon the employee. This whole field of "permissable inquiry ... concerning statements or affidavits given to a Board agent" always involves "the risk of intimidation which +7 W. T. Grant Company, 144 NLRB 1179 ; Henry I. Siegel Co. v. N.L.R.B., 328 F. 2d 25 (C.A. 2). 1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interrogation as to union matters necessarily entails." 48 The right of an employer fairly to inquire must be weighed against the inevitable encroachment upon the free- dom of employees to look to the Board for protection. Given that the first inquiry- did you give a statement?-is proper, and the last-will you let me see it?-is, illegal, I think the middle question-do you have a copy?-ought not be permitted, for whatever reason is deemed sufficient to prohibit the last. Do you have a cigarette9 Do you have a dollar? Do you have a copy? But there is a more important question calling for decision here. Does it follow from the fact an employer may inquire about activities relating to an unfair labor practice case, that it may also compel answers, and discharge employees who choose to remain silent? Here there were only threats of discharge, and short layoffs, but the issue is the same, for it was only because the employees weakened in the face of the threats, and spoke against their will, that they avoided final separation. In the light of the nature of the right guaranteed employees by Section 7 of the Act, the answer to this question must be in the negative. It is a matter of employers, inquiring preparatory to defense against unfair labor charges, and therefore, however phrased, the questions must relate to union activities, one way or the other, whether by employees or by company representatives. The ultimate purpose of the employer's pretrial investigation can only be aimed at ascertaining what the eventual testimony will be at the hearing, which employee might tell stories in its favor and which against. The facts at issue may not directly deal with union matters, but, however indirectly, they must have a bearing on the final complaint allegation in matters relating to union affairs. Employees have a guaranteed right, in their union activities, to be free of employer interference, and this right is recognized by Section 8(a) (4) to extend to unrestrained freedom in giving testimony before the Board. This freedom cuts both ways. They are free to talk to their employer if they choose; and some employees in this very case voluntarily brought their affidavits to the Company. But they must be free also to refuse to speak. The purported analogy to a "slip and fall case," where it is argued any employee owes a loyalty to his employer to come forth with what he knows of a personal injury negligence claim, is inapposite. Anything that is not concerned with unions, or concerted activities related to employment con- ditions, has nothing to do with and therefore cannot be logical analogy to this question. I find that each interrogation of employees set out above as to whether the employ- ees had a copy of his affidavit given to a Board agent, and each request to show the affidavit to a company representative, constituted a violation of Section 8 (a)( I) of the Act. I find that each instance of threat to discipline or discharge an employee for refusing to answer any of the above questions, or any other question concerning the employee's interview with a Board agent, or the employee's knowledge concerning the allegations of unfair labor practice charges against the Respondent, was an act of restraint and coercion violative of Section 8(a)(1). I also find that the layoff of employees Marak, Kaiser, Miklovic, Rorabaugh, Sheely and Angleton for refusing to answer questions as detailed above constituted unlawful discrimination in employ- ment in violation of Section 8 (a) (4) of the Act.49 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section III, above, occurring in con- nection with its operations set forth 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 committed certain unfair labor practices, I shall recommend that it be ordered to cease and desist from engaging in further such con- duct and to take affirmative remedial action designed to dissipate its effects and to restore the status quo ante. It must above all be ordered to cease and desist from any further conduct violative of Section 8(a) (5) of the Act. This will include any form of encouragement, assistance, or instigation of employees to discontinue union membership or payment of union dues, or to file decertification petitions with the Board. The order will also enjoin the Respondent from any further unlawful refusals to bargain with any majority representative of its employees or from engaging in any conduct constituting a refusal to bargain as defined in Section 8(d) of the Act. 48 Joy Silk Mills, Inc. v. N.L R B., 185 F. 2d 732, 743. 40 Lloyd A. Fry Roofing Company, 123 NLRB 647. MONTGOMERY WARD AND CO., INCORPORATED 1263 The Respondent must also be ordered expressly to cease and desist from illegal interrogation or polling of its employees in a manner violative of Section 8(a)(1) of the Act, or from promising improved conditions of employment as an inducement for employees to reject their union. The Respondent's widespread illegal inquiry of many employees concerning their interviews by Board investigating agents and concerning statements or affidavits they may have given such agents, also makes necessary a specific order to discontinue such practices in the future. The disciplinary layoff of employees for refusing to reveal whether they have given statements to Board agents, for refusing to discuss their proposed testimony with company representatives, or for refusing to answer questions put by management representatives concerning the substance of the charge against the Respondent, also requires the usual make-whole remedy. The Respondent will also be required to take affirmative remedial action. Of the total of 34 separate store locations where the Respondent directly withdrew recogni- tion from the Union and refused outright to continue bargaining, the General Counsel asks that it be ordered to bargain with appropriate local union on request in all but a very limited number of them. This is the long-established minimum remedial action required by the Board and the extent and character of conduct leading to and under- lying the Respondent's denial of statutory recognition rights to the Union in this case fully warrants adherence to that practice here. The finality of the Respondent's illegal exclusion of the Union as a bargaining agent in 24 of the stores involved is clear and unquestioned on the record. Of these, 2 had lost Board elections in June (Ponca City and Las Vegas); 14 had lost in the company elections in August (Anchorage, Carlinville, El Dorado, Jefferson City, Kansas City, Hillsdale, La Grange, Longview, Merced, Petoskey, Richmond, Madera, Portland, and Spokane); 50 in one (Butler) the company election was inconclusive; the remaining 7 were denied further recognition thereafter (Mt. Vernon, Salisbury, Chico, Sacramento, Pueblo, Punxsutawney and DuBois). With the exception of Butler, in all these 24 stores the Respondent, after the refusal, gave the employees either its three giant steps new benefits, if the refusals occurred before August 8, or all the economic terms of the national agreement reached with the Union, if the refusal came later. As to the remaining eight locations where an affirmative order to bargain is requested, the unequivocal refusals to bargain are no less clear, and the obligation of the Respondent to bargain now, on request, if the coercive effects of its unfair labor practices are to be dissipated, is equally indicated. As to these stores, however, the Respondent offered, and was permitted to show, certain events which occurred after the full pattern of its illegal program to exclude the Union from the stores had been perfected and carried out. Briefly, the Respondent showed that in San Luis Obispo, where the company election produced inconclusive results, the Company did not put the new benefits in effect. Somehow, there came a time in February 1964 when it discussed the possibility of signing a contract with the Local. No agreement was reached and that is how matters stood at the time of the hearing. In the last seven stores, in each of which there was an unequivocal refusal to negotiate further and in each of which the Respondent held its coercive and illegal August election, the employees voted in favor of the local union. After these elec- tions, the Respondent wrote a letter to the local, offered to extend recognition anew on the basis of the election conducted by the Company, invited it to resume bargaining, and suggested signing the settlement agreement negotiated nationally in Chicago. On advice of its International office, each such local replied that while it reasserted its claimed majority status, it refused the invitation as an attempt by the Respondent to enjoy "the fruits of illegal conduct." The Union contended that the elections were "in derogation of lawful Board process," and that the Union refused to be the "recipient of such company tactics which were aimed at the Union's destruction." The Respondent then filed charges with the General Counsel, alleging that these local unions had illegally refused to bargain in violation of Section 8(b)(3) of the Act; the General Counsel refused to issue complaint. With time, there were further developments at these stores. At six of them the local changed position and entered upon discussion aimed at the possibility of signing the August national settlement. In San Jose and in Marietta the contracts were eventually signed in early 1964. In Alamosa, as the parties were on the verge of signing, another decertification petition was filed, and again the Respondent refused to make a contract. In Meadville, Muskegon and Maryville, talk was inconclusive and no agreement was ever made. At Port Huron the retail store was closed in December of 1963, and the old catalogue department continued as a separate catalogue store, with only eight employees, the same persons who had worked there before. 51 The 15th store where the Union lost is Baker, where a violation of Section 8(a)(1) of the Act is found. 1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All these facts relating to events occurring after the commission of the unfair labor practices were proved over continuing objection by the General Counsel. In the arguments, on the record, between competing counsel on the question of admissibility, the various lawyers for the Respondent made many passing, but vague and elusive statements as to what they sought to achieve in this case by this evidence. At times they seemed to argue that the Company's later willingness to bargain proves its good faith from the start, or that the broad theory of circumstantial evidence requires a look at the "total picture," even including these subsequent matters, or that these facts show that it was only a doubt of majority that ever motivated the Respondent. Again at other times the theory here seemed to be addressed to the remedy; it sounded like an argument that once an employer expresses a willingness to resume bargaining, any and all of its previous conduct becomes meaningless, or that if, after all has been said and done, the union sits down and talks, it ipso facto waives any right to redress for hurts that may have been inflicted upon it. The lawyers also seemed to say that once the union itself has refused to deal with the employer, regardless of the circumstances, the employer's good faith can in no event be questioned. Referring to the two stores where, finally, the local union accepted the contract and signed, counsel also said that as this-the agreement-was all that these two locals would have received even if there had never been any refusals to bargain at all, what grounds could they have for complaining now? At the close of the hearing I asked all parties to explain, either by oral argument then and there or in their briefs, what inferences and conclusions they intended should be drawn from many exhibits and facts which had been put in evidence, and as to which there had not been articulated clear contentions. They were cautioned that unless the party who burdened the record with factual material clarified his purpose in doing so, or advanced an understandable argument based upon it, those matters might not be fully appreciated, particularly in view of the length of the record Despite this invitation and admonition, no oral argument was offered, and in its brief the Respond- ent does not mention any of this post unfair labor practice material at all. Absent any argument based on these events, it may be that the Respondent has abandoned an original intention to rely upon them either to defeat the complaint or to limit the remedial order. There is no reason to speculate concerning its possible contentions, or to consider and dispose of arguments that may never be advanced. In any event, no sufficient reason appears for departing, even with respect to these last eight stores, from the Board's established practice to order a Respondent who has illegally refused to bargain with the majority representative of its employees, to do so on request once the illegal refusal had been found. The fact that long after the commission of the unfair labor practices, indeed during the very hearing on the charges, a union sees fit to sign a contract, or the respondent employer complies with its basic duty under the Act, is not in itself reason to do otherwise.51 There may be any number of reasons why such a union would settle for whatever it can obtain while awaiting the positive assurance of good-faith bargaining compelled by Board order. Indeed the nature and extent of the unfair labor practices committed in this case may well explain why several locals, despite the disparagement which had been heaped upon them, acceded to the Respondent's desire and met with it again before their proper status could be established in the minds of the employees by the Board's corrective process. In some of these stores the advertised benefits were still being awaited, and the employees had been told they were at a disadvantage only because they had reaffirmed their attachment to the Union. Every day that passed, therefore, placed the Union in a more and more impossible position, the very goal which the August company elections sought. If, in such circumstances, the Union attempted to salvage a measure of esteem in the eyes of the employees by accepting whatever they could on their behalf, it hardly becomes reason to relieve the Respondent from any other obligation now. Nor does the Union's refusal to bargain, after the events, on the basis which the Respondent deemed appropriate, either defeat the complaint or otherwise put an end to the case. The propriety of the Union's conduct is not at issue in this pro- ceeding; the basic question, whether on the merits of the complaint or the scope of the remedy, remains the good or bad faith of the Company. As already found the Respondent rejects not only the fundamental statutory principle of an employer's duty to bargain in good faith with its employees' chosen representative, but also the statutory scheme charging the Board with the public duty and responsibility to pass upon unfair labor practice charges and to determine questions concerning repre- N L.R.B. v. Mea,ia Textile Mills, Inc., 339 U.S. 563: The Act does not require the Board to play hide-and-seek with those guilty of unfair labor practices. MONTGOMERY WARD AND CO., INCORPORATED 1265 sentation presented to it. It was this total attitude, illegal in every respect, with which the local unions refused to cooperate when they viewed the belated invitations to bargain as "offering the fruits of illegal conduct." If they viewed the offers as less than good-faith proposals, they had reasonable grounds for their belief. It is this pervasive attitude of the Respondent, that an employer may with impunity arouse decertifiaction impulses in employees with economic enticement and then frame the procedures of collective bargaining as inimical to improved conditions of employ- ment, that must stop. The Union was not obligated to play the part of a pawn in the process of collective bargaining as the Respondent illegally conceives it. Cer- tainly, the refusal to join in completion of the Respondent's long-range program has no bearing, in the circumstances of this case, upon what an appropriate remedy must be. There is further affirmative action that must be taken by the Respondent now to undo the coercive effects of its antiunion activities, in many locations still eroding the prestige of the Union and continuously operating to bring about abandonment of the collective-bargaining agent. In each of the 26 stores where the August elections took place the Respondent offered the employees the entire economic settlement reached with the International earlier that month, but only as a benefit conditioned upon rejection of the Retail Clerks local. Fifteen stores voted against the Union and were forthwith rewarded unilaterally with all the terms of the contract. In 11 stores the employees either voted in favor of the Union, or refused to cast a majority vote against it. The economic improvements were withheld from them; in some stores the local union reluctantly later met with company representatives, a few even signed contracts. In four of them-San Luis Obispo, Maryville, Muskegon and Butler- all the advantages, including both the company benefits spoken of in May and the terms negotiated with the International, are being withheld to this day. I shall rec- ommend that the Respondent be ordered to place all these improved conditions of employment in effect in these 11 stores retroactively to September 1, 1963, when the employees who acceded to the Employer's inducement and voted against the Union, received them. Where the local Union later consented to unilateral action by the Company, or signed the national agreement and thereby agreed to make the economic terms effective, the period of retroactivity will be shortened. Such later events, however, cannot serve to relieve the Respondent of the obligation to undo the direct illegal discrimination in employment which it imposed on these employees in August. Its conduct was a clear violation of both Section 8 (a) (1) and (5) of the Act; any remedy short of this direct compensation means that the very disadvantage in working conditions which the Respondent attached to continued union preference will have been suffered by the employees without redress.52 I shall also recommend that the Respondent be ordered to execute the contract regularly negotiated on a national basis for four stores-Punxsutawney, Mt. Vernon, Chico, and DuBois. These locations were included in the bargaining which con- tinued through August in Chicago when the final settlement was reached. At each store the employees voted to ratify, and the further agreement to place the terms of the contract in effect was carried out. Nothing remained but the formality of signing the separate agreements. Meanwhile, as the final language was being drafted, the Company posted a notice at two stores, advising the employees that the moment the signatures appeared on the final document, for the first time all employees would be required to join the Union. In each of these stores the decertification petitions were filed before the contract language was finalized and quickly the Respondent refused to recognize the Union further or to execute the contract. Although the petitions were filed at that later time, the pattern of illegal conduct extended to these stores also, with the usual May speeches, and the usual assistance to decertification petitioners. If anything, the extent of local management partici- pation in the movements was more marked here than at many other locations. In these circumstances, effective remedial action requires that the contract be executed, else once again the illegal objective of depriving the Union of any credit in the eyes of the employees for benefits regularly negotiated in collective bargaining will have been successfully accomplished.5s There is some indication that at one or two of these four locations where the agreement had been ratified and put in effect, with only the signing formality remain- ing, the parties were in process of preparing a side letter, also agreed upon at Chi- cago, waiving union initiation fees for old employees who would have to become members. This was a very minor matter, and the Respondent's outright refusal to 52 N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333. 53 H. J. Heinz Company v. N.L.R.B., 311 U.S. 514. 206-446-66-vol. 154-81 1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sign a contract already delivered, or to send one to the particular local at all, was based entirely upon the same kind of alleged questions concerning representation which it advanced at all other locations. There is no indication that the matter of the side letter in any way interfered with the regular signing of the agreement. At Alamosa and Meadville, where the refusals to bargain came originally before the national settlement was negotiated and where the employees voted in favor of the Union in the company elections, the parties were talking contract while the hearing was in process months later. There is positive evidence on the record that here the side letter relating to union security had become a stumbling block. The record as a whole does not support the General Counsel's contention that the Respondent refused to sign the agreed-upon contract at these two locations because the local refused to withdraw pending unfair labor practice charges. Moreover, the evidence does not prove, as the General Counsel also asserts, that at the national settlement in Chicago on August 7 the parties agreed that in the event any of the decertification petitions then pending should be "dismissed or with- drawn," the same agreement would automatically be signed for all those locations, and that by such general talk the Respondent intended to be bound even if the "dismissals" were perfunctory administrative steps taken by the Regional Officers in carrying on the unfair labor practice proceedings. I shall also recommend the usual posting of notices to assure the employees that they will henceforth be free of coercion and restraint from the Respondent in the exercise of their statutory rights to self-organization and to engage in collective bargaining through any union of their choice. In the special circumstances of this case the Respondent will also be required to post such a general notice in those stores which are not named in the complaint but where the May benefits speech was given because a Retail Clerks Local represented the employees in the spring of 1963. The illegal intent to provoke decertification movements was present in these speeches also; as elsewhere the speakers were fortified with the decertification brochures, ready to "assist" the employees. Whatever the extent of the inevitably coercive effect of the speeches may have been upon these employees, it must be dissipated by appropriate notices of assurance. And, clearly, the overall unfair labor practices found also require that the Respondent be ordered to cease and desist from in any other manner infringing upon the rights guaranteed employees by Section 7 of the Act. Upon the basis of the above findings of fact and upon the entire record, I make the following; CONCLUSIONS OF LAW 1. Montgomery Ward & Co., Incorporated, is an employer within the meaning of Section 2(2) of the Act. 2. Retail Clerks International Association, AFL-CIO, and each of its locals listed on the attached Appendix A and B, are labor organizations within the meaning of Section 2(5) of the Act. 3. All employees included in the bargaining units set out in the collective-bargaining agreements and/or Board certifications in effect during the month of May 1963 at each of the separate store locations of the Respondent listed on Appendixes A and B, separately constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. Each of the locals of International Retail Clerks Association, AFL-CIO, listed on Appendix A and B, were in May 1963, and at all times since have been the exclusive bargaining representatives of all the employees in the aforesaid bargaining units at the indicated locations for the purposes of collective bargaining within the meaning of Section 9(a) of the Act.54 5. By refusing to bargain collectively with the listed local unions, as the exclusive representatives of the employees in the aforesaid appropriate units, as found above, the Respondent has engaged in, and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 6. By discriminating against Edward Marak, William Kaiser, Carl Miklovic, James Rorabaugh, Delmar Sheely, and Esther Angleton in regard to their hire and tenure of employment because of their refusals, on inquiry, to reveal whether they had given statements to Board agents, what the contents of such statements were, or their knowledge of matters pertaining to unfair labor practice charges filed against the Respondent, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(4) of the Act. 51 For Portland, Oregon, see footnote 2. . MONTGOMERY WARD AND CO., INCORPORATED 1267 7. By the foregoing conduct, by polling and interrogating employees regarding their preference for or against union representation, by offering, granting, and promising employees improved benefits in terms and conditions of employment to induce them to reject their collective-bargaining representative, by requesting employ- ees to furnish it copies of affidavits given by them to a Board agent investigating unfair labor practice charges filed against it, by interrogating employees regarding the contents of such affidavits, by threatening employees with discharge or disci- plinary action for refusing to state whether they had been interviewed by a Board agent or had given affidavits or statements in connection therewith, or for refusing to answer any questions asked by Respondent's agents during its investigation of unfair labor practice charges filed against it, and by encouraging , assisting, and insti- gating employees to circulate and file union decertification petitions and to discon- tinue paying union dues and to resign from a union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby recommend that Respondent, Montgomery Ward & Co., Incorporated, Chicago, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with the local unions affiliated with Inter- national Retail Clerks Association, AFL-CIO, as listed on Appendixes A and B, as the exclusive bargaining representatives of all employees of Respondent in the appropriate bargaining units indicated above, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. (b) Laying off or otherwise discriminating against employees because of their refusal to reveal whether they have given statements to Board agents, what the contents of such statements was, or their knowledge of matters pertaining to unfair labor practice charges filed against the Respondent. (c) Polling or interrogating employees regarding their preference for or against union representation, offering, granting, and promising employees improved benefits in terms and conditions of employment to induce them to reject their collective- bargaining representative, requesting employees to furnish it copies of affidavits given by them to Board agents investigating unfair labor practice charges filed against it, interrogating employees regarding the contents of such affidavits, threat- ening employees with discharge or disciplinary action for refusing to state whether they had been interviewed by a Board agent, and whether they had given affidavits or statements in connection therewith, or for refusing to answer any questions asked by Respondent's agents during its investigation of unfair labor practice charges filed against it, or encouraging, assisting, and instigating employees to circulate and file union decertification petitions and to discontinue paying union dues or to resign from a union. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist any local union of International Retail Clerks Association, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, or to refrain from engaging in such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as authorized in Section 8(a)(3) of the Act, as amended. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, bargain collectively with each of the local unions listed on Appendix A as the exclusive representative of all employees in the indicated appro- priate units, and embody any understanding reached in a signed agreement. (b) If requested to do so by Local 1436 (Punxsutawney and DuBois bargaining units), Local 17 (Chico bargaining unit), and Local 806 (Mt. Vernon bargaining unit), sign forthwith the full contract agreed upon in August of 1963 between the Retail Clerks International Association, AFL-CIO, and the Respondent and ratified by the local unions, and deliver two copies thereof for each bargaining unit to the respective-Local Union: 1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) If no such request is made, then, upon request, bargain collectively with Local Unions 1436, 17, and 806, as the exclusive representatives of all employees in the appropriate units at Punxsutawney, DuBois, Chico, and Mt. Vernon, respec- tively, and embody any understanding reached in a signed agreement. (d) Make whole Edward Marak, William Kaiser, Carl Miklovic, James Rora- baugh, Delmar Sheely, and Esther Angleton for any loss of pay they may have suf- fered by reason of the discrimination against them, with interest on any amounts due at 6 percent per annum. (e) Post at each of its retail store locations listed on Appendix A the attached notice marked "Appendix C." 55 Post at each of its retail store locations at Punx- sutawney, DuBois, Chico, and Mt. Vernon (Illinois) the attached notice marked "Appendix D." 56 Post the attached notice marked "Appendix E" 57 at Baker, Southgate, Royal Oak, Pittsburg, La Junta, Modesto, Woodland, and at each of the retail store locations, not listed in the complaint, but where in May 1963 the employ- ees were covered by a collective-bargaining contract with a local union of Interna- tional Retail Clerks Association, AFL-CIO, or where such a local union was other- wise the recognized exclusive majority representative.78 Copies of said notices, to be furnished by the Regional Director for Region 13, shall, after being duly signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where 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. (f) Notify the Regional Director for Region 13, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.59 55 In the event that this Recommended Order 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". ce Ibid. 57 Ibid. us In his brief the General Counsel waived an affirmative bargaining order for South- gate and Royal Oak, and during the hearing stated the same position for Pittsburg, La Junta, Modesto , and Woodland. se In the event that this Recommended Order be 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 A Local Local La Grange--------------------- 300 Alamosa---------------------- 7 Carlinville--------------------- 1053 Las Vegas--------------------- 1564 Marietta ---------------------- 1059 Madera ----------------------- 170 Butler ------------------------- 1407 San Luis Obispo---------------- 899 Meadville --------------------- 1538 Merced ------------------------ 170 Port Huron-------------------- 876 Sacramento-------------------- 588 Petoskey---------------------- 11 Anchorage -------------------- 1496 Muskegon--------------------- 807 Spokane----------------------- 1439 Hillsdale-------------- -------- 10 Longview---------------------- 148 Jefferson City------------------ 782 Portland-----------------------1 1257 Kansas City ------------------- 782 Richmond--------------------- 1179 Maryville---- ------------------ 988 San Jose----------------------- 428 El Dorado--------- ------------ 809 Ponca City -------------------- 809 Pueblo ------------------------ 24 Salisbury---------------------- 692 1 See footnote 2a. APPENDIX B Local Local Southgate--------------------- 876 Woodland--------------------- 588 Royal Oak --------------------- 876 Punxsutawney------------------ 1436 ]Pittsburg (Calif.)--------------- 1179 DuBois------------------------ 1436 La Junta---------------------- 7 Chico------------------------- 17 Modesto----------------------- 588 Mt. Vernon ( Ill.)_.------------- 806 MONTGOMERY WARD AND CO., INCORPORATED APPENDIX C 1269 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 Rela- tions Act, we hereby notify you that: WE WILL upon request, bargain collectively with Local ,i International Retail Clerks Association, AFL-CIO, as the exclusive bargaining representative of all employees in the following bargaining unit with respect to rates of pay, wages, hours of employment, and other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: 2 WE WILL NOT encourage, assist, or instigate our employees to circulate and file union decertification petitions or to discontinue paying union dues or to resign from a union. WE WILL NOT lay off or otherwise discriminate against employees because of their refusal to reveal whether they have given statements to Board agents, what the contents of such statements are, or their knowledge of matters pertaining to unfair labor practice charges filed against us. WE WILL NOT request our employees to furnish us with copies of statements they may have given to the National Labor Relations Board or interrogate them with respect to the contents thereof. WE WILL NOT poll or interrogate our employees regarding their preference for or against union representation, offer, grant, or promise our employees improved benefits in terms and conditions of employment to induce them to reject their collective-bargaining representative, or threaten our employees with discharge or disciplinary action for refusing to state whether they have been interviewed by a Board agent or have given affidavits or statements in connec- tion therewith, or for refusing to answer any questions during our investigation of unfair labor practice charges filed against us. WE WILL make whole Edward Marak, William Kaiser, Carl Miklovic, James Rorabaugh, Delmar Sheely, and Esther Angleton, for any loss of earnings they may have 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 their right to self-organization, to form, join, or assist any labor organization, to join or assist International Retail Clerks Asso- ciation, AFL-CIO, or any of its locals, to bargain collectively through repre- sentatives of their own choosing, to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, and 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 a condition of employment, as authorized in Section 8(a)(3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. All our employees are free to become, remain, or refrain from becoming or remaining, members of any labor organization. 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, 881 U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illi- nois, Telephone No. 828-7572, if they have any question concerning this notice or compliance with its provisions. ' The Regional Director will insert at this place in the notice the appropriate local union designation as shown on Appendix A. 2 The Regional Director will insert at this place In the notice the appropriate bargain- ing unit description as explained in the body of the Trial Examiner 's Decision. 1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX D 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 Rela- tions Act, we hereby notify you that: IF REQUESTED to do so by Local ,1 International Retail Clerks Associ- ation, AFL-CIO, we will forthwith sign the full contract agreed upon in August 1963 between the International Union and us, and ratified by our employees, and deliver two copies thereof to the local union. IF NO such request is made, we will, upon request, bargain collectively with Local ,2 International Retail Clerks Association, AFL-CIO, as the exclusive bargaining representative of all employees in the following bargaining unit with respect to rates of pay, wages, hours of employment, and other condi- tions of employment, and if an understanding is reached, embody such under- standing in a signed agreement. The bargaining unit is: 3 WE WILL NOT encourage, assist, or instigate our employees to circulate and file union decertification petitions or to discontinue paying union dues or to resign from a union. WE WILL NOT lay off or otherwise discriminate against employees because of their refusal to reveal whether they have given statements to Board agents, what the contents of such statements are, or their knowledge of matters pertaining to unfair labor practice charges filed against us. WE WILL NOT request our employees to furnish us with copies of statements they may have given to the National Labor Relations Board or interrogate them with respect to the contents thereof. WE WILL NOT poll or interrogate our employees regarding their preference for or against union representation, offer, grant, or promise our employees improved benefits in terms and conditions of employment to induce them to reject their collective bargaining representative, or threaten our employees with discharge or disciplinary action for refusing to state whether they have been interviewed by a Board agent or have given affidavits or statements in connection therewith, or for refusing to answer any questions during our investigation of unfair labor practice charges filed against us. WE WILL make whole Edward Marak, William Kaiser, Carl Miklovic, James Rorabaugh, Delman Sheely, and Esther Angleton, for any loss of earnings they may have 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 their right to self-organization, to form, join, or assist any labor organization, to join or assist International Retail Clerks Associa- tion, AFL-CIO, or any of its locals, to bargain collectively through representa- tives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and 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 a condition of employment, as authorized in Section 8(a)(3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. All our employees are free to become, remain, or refrain from becoming or remain- ing, members of any labor organization. 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, 881 U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois, Telephone No. 828-7572, if they have any question concerning this notice or com- pliance with its provisions. :'The Regional Director will insert at this place in the notice the appropriate local union designation as shown on Appendix B. 2 Ibid. 8 The Regional Director will insert at this place in the notice the appropriate bargain- ing unit description as explained in the body of the Trial Examiner's Decision. OVERNITE TRANSPORTATION COMPANY 1271 APPENDIX E 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 Rela- tions Act, we hereby notify you that: WE WILL NOT refuse to bargain collectively with any local union affiliated with International Retail Clerks Association, AFL-CIO, which is the exclusive bar- gaining representative of our employees in an appropriate bargaining unit. WE WILL NOT encourage, assist, or instigate our employees to circulate and file union decertification petitions or to discontinue paying union dues or to resign from a union. WE WILL NOT lay off or otherwise discriminate against employees because of their refusal to reveal whether they have given statements to Board agents, what the contents of such statements are, or their knowledge of matters pertaining to unfair labor practice charges filed against us. WE WILL NOT request our employees to furnish us with copies of statements they may have given to the National Labor Relations Board or interrogate them with respect to the contents thereof. WE WILL NOT poll or interrogate our employees regarding their preference for or against union representation, offer, grant, or promise our employees improved benefits in terms and conditions of employment to induce them to reject their collective-bargaining representative , or threaten our employees with discharge or disciplinary action for refusing to state whether they have been interviewed by a Board agent or have given affidavits or statements in connection therewith, or for refusing to answer any questions during our investigation of unfair labor practice charges filed against us. WE WILL NOT in any other manner interfere with , restrain, or coerce our employees in the exercise of their right to self-organization , to form, join, or assist any labor organization, to join or assist International Retail Clerks Associa- tion, AFL-CIO, or any of its locals, to bargain collectively through representa- tives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and 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 a condition of employment, as authorized in Section 8(a)(3) of the National Labor Relations Act, as modified by the Labor -Management Reporting and Disclosure Act of 1959. All our employees are free to become, remain , or refrain from becoming or remain- ing, members of any labor organization. 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, 881 U.S. Courthouse and Federal Office Building , 219 South Dearborn Street , Chicago, Illinois, Telephone No. 828-7572, if they have any question concerning this notice or com- pliance with its provisions. Overnite Transportation Company and Truck Drivers and Help- ers Local Union 728, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 10-CA-5666. September 15, 1965 DECISION AND ORDER On November 30, 1964, Trial Examiner James F. Foley issued his Decision in the above-entitled proceeding, finding that the Respondent 154 NLRB No. 98.