Montgomery Ward & Co., Inc.

MONTGOMERY WARD & CO., INCORPORATED 7 (b) Post at its place of business in Orlando, Florida, copies of the attached notice marked "Appendix." i Copies of said notice, to be furnished by the Regional Direc- tor for Region 12, shall, after being duly signed by an authorized representative of the Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 12, in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply therewith? i In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order 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". IIn the event that this Recommended Order Is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 12, in writing, within 10 days from the date of receipt of this Order, what steps the Company has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL bargain collectively upon request with Sheet Metal Workers' Inter- national Association, AFL-CIO, as the exclusive bargaining representative of all our employees in the appropriate unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment, and, if an agreement is reached, embody such understanding in a signed contract. The appropriate unit is: All production and maintenance employees at our Orlando, Florida, plant, including sheet metal assemblers, sheet metal assemblers senior, car- penters, welders, machine operators, sheet metal mechanics, machinists, painters, jig and fixture mechanics, electrical assemblers, wiremen, material handlers, test technicians, maintenance technicians, stock clerks, shipping and receiving clerks, warehousemen, drivers, inspectors, and timekeepers; excluding, all other employees, including office clerical employees, profes- sional employees (including engineers), technical employees (including electronic technicians and draftsmen), and supervisors as defined in the Act. ORTRONIX, INC., 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Ross Building, 112 East Cass Street, Tampa, Florida, Telephone No. 223-4623. Montgomery Ward & Co., Incorporated and Betty A. Frese. Case No. 13-CA-6745. December 14,1965 DECISION AND ORDER On September 17, 1965, Trial Examiner David London issued his Decision in the above-entitled proceeding, finding that the Respondent 156 NLRB No. 5. 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. The Respondent filed cross-exceptions and a brief in support thereof and a brief in answer to the exceptions. 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 no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions and brief in support thereof, cross- exceptions and brief in answer to exceptions and support of cross- exceptions, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' [The Board adopted the Trial Examiner's Recommended Order.] 'Without necessarily agreeing that Frese ' s version of her final conversation with McLean would not support the constructive discharge alleged , we nevertheless conclude in the circumstances of this case that the record fails to establish such violation. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed October 20, 1964, by Betty A. Frese, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 13, issued a complaint dated May 14, 1965 , alleging that Montgomery Ward and Co ., Incor- porated, herein called the Respondent , violated Section 8(a)•(1) of the National Labor Relations Act, as amended , herein called the Act. Respondent duly filed its answer to said complaint denying that it had been guilty of any unfair labor practice. Pursuant to due notice , a hearing was held before Trial Examiner David London at Chicago , Illinois, on July 19, 1965. All parties appeared at the hearing and were given full opportunity to examine and cross -examine witnesses , to introduce relevant evidence , to argue orally, and to file briefs. Since the close of the hearing, briefs were received from the General Counsel and Respondent and have been fully considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent Montgomery Ward & Co., Incorporated, is, and has been at all times material herein , a corporation duly organized and existing under and by virtue of the laws of the State of Illinois. At all times material herein, Respondent was, and presently is, engaged in the sale and distribution of merchandise throughout the United States and many foreign countries at its various retail stores and mail-order houses. During the year preceding the filing of the complaint herein, Respondent sold and distributed products having a gross value in excess of $2 million , and pur- chased and received goods and materials valued in excess of $50,000 which goods and materials were shipped directly to it from States of the United States other than the State of Illinois. Respondent admits, and I find, that at all times material herein it was, and presently is, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. MONTGOMERY WARD & CO., INCORPORATED 9 H. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges, and Respondent's answer denies, that on or about Septem- ber 9, 1964, Respondent: (1) Interrogated employee Betty A. Frese concerning (a) her concerted activity in discussing wages and working conditions with her fellow employees, (b) her circulation of a petition among employees to obtain better wages and working conditions, and (c) her other concerted activity for the purpose of collective bargaining or other mutual aid or protection; (2) threatened Frese with discharge unless she refrained from engaging in the activities described above; (3) caused Frese to terminate her employment because she engaged in protected con- certed activity for the purpose of collective bargaining or other mutual aid or protection. Frese was employed by Respondent in its credit department at Chicago, Illinois, on August 28, 1963, as a collector of delinquent accounts and continued in that capacity until September 10, 1964. At the time she was hired, she was informed the men in that department were hired at $100 per week and women at $80 per week, but because of her long experience in that type of work she would be paid $95 per week. On June 11, 1964, the Equal Pay Act of 1963 (29 U.S.C. Sec. 206(d)) became effective prohibiting employers from discriminating on the basis of sex in the pay- ment of wages for equal work. Frese testified that in the middle of June 1964 she began and thereafter engaged in discussions with fellow employees concerning the aforementioned legislation. In order "to have the situation remedied," she filed a "petition" with the Labor Department seeking an investigation to determine whether Respondent was in violation of the Equal Pay Act. She also obtained circulars from the Labor Department pertaining to that legislation and distributed them among the employees. Among the two-thirds of the approximately 25 employees in her de- partment with whom she carried on the discussions aforementioned, the last of, which occurred on September 9, were Lillian Leors and Bernadette Baker. On the following day, September 10, 1964, as Robert McLean, Respondent's credit manager, passed Leors' desk, the latter told him that she would like to discuss something with him, something "he should know about ... because it was causing hard feelings among the employees." McLean invited her to his office where Leors told him that for 2 or 3 weeks, in the ladies' room, Frese was discussing and quoting salaries of other employees, information which Frese had stated she obtained from a friend also employed by Respondent who "could get all the confidential information she needed." Leors also reported to McLean that Frese "mentioned something about a petition, ... about suing the store because the women were being underpaid, they were not getting the same salary the men were getting for doing the same work," and that she had asked Leors to "go with her." During the interview just described, the name of Bernadette Baker, also employed in the credit department, was interjected, and McLean asked Baker to come to his office. There, McLean asked Baker if Frese had been talking to her regarding wages of employees in the office, if Frese had mentioned anything regarding a petition for equal wages for women, and Baker replied affirmatively. McLean asked her whether Frese had mentioned the wages of any employees in particular and was told that she had quoted the salaries of Rose George and Arthur Ahern. Baker also informed McLean that Frese indicated that she got this information from "a girl friend" em- ployed by Respondent. Immediately after lunch of the same day, September 10, McLean summoned Frese to his office where he questioned her in the presence of Collection Manager Richard Kopriva and Operating Manager Charles Mallehan. With regard to a portion of that interview, there is no substantial conflict in the testimony of the four persons present thereat, all of whom testified with regard thereto. Based on their composite testimony, I find that McLean asked Frese if she was "taking up a petition" and she denied that she had asked anybody to sign a petition. When accused by McLean that she was quoting wages, or that she knew the salary of other employees, she denied the accusations except only that she admitted knowing the salary of Rose George, $107 per week, and that with respect ,to her, she obtained that information from Kopriva who had voluntarily disclosed it to her. When McLean asked her who she thought was the best collector in the department, Frese replied that she "guessed" that she was because she had, on September 4, received a commendation. McLean challenged her self-appraisal by asserting that she was on probation at that very moment `%ecause of the way [she] handled a customer." Frese denied that she was on probation but Kopriva assured McLean that she was. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to the remainder of the interview there is conflict in the testimony. Frese testified that after McLean accused her of lying by her denials "about the petition, [her] probation, and the wages of the other people," he told her that if she did not like the wages she was getting, to "get out, and get out right now." To this, according to her own testimony, she replied, "That is fine, Mr. McLean, I will get out, but this office will still go under an investigation for equal wage." She left McLean's office immediately thereafter and went to her desk to pick up her personal belongings. Accompanied by Kopriva, she went to the personnel office where Miss Sullivan, the person in charge, asked whether the action was to be noted as "a resignation or a termination" to which she replied: "I guess this is a termina- tion because Mr. McLean told me to get out, so I guess I am fired." She testified, however, that Kopriva expressed sharp disagreement, informed Sullivan that Frese had resigned, and that he wanted the record of termination to so indicate. McLean denied that he told Frese to get out if she did not like the wages she was receiving. His testimony with respect to the terminal point of the interview was as follows: After receiving verification from Kopriva that Frese was then on pro- bation because of the way she "handled a customer,"' he told her he "thought she better get back to work and [he] didn't want any more customer complaints because, if [he] did, disciplinary action may have to be taken." 2 According to McLean, she replied: "You won't get a chance, Buster, I am quitting, I am leaving right now," that she was going to sue him and Montgomery Ward for a quarter of a million dollars, and `babbled" about the "Fair Labor" Act. He thereupon instructed Kopriva to take her to the personnel office. In corroboration of McLean, both Mallehan and Kopriva testified that after McLean warned Frese that he would have to take some "corrective" or "further" action if she repeated the conduct which resulted in her probation, Frese announced that he would not get a chance to do so because she was quitting. Concluding Findings On the entire record I find that by McLean's interrogation of Frese whether she was initiating or circulating a petition, Respondent violated Section 8(a) (1) of the Act. McLean had been informed by Leors that she had been asked by Frese to "go with her" on a petition seeking "the same salary [for the women that] the men were getting for doing the same work." It was the information concerning this activity that prompted McLean to inquire of Baker whether Frese "had mentioned anything to [her] regarding a petition for equal wages for the women in the office." No claim is made that McLean's subsequent inquiry of Frese was for the purpose of ascertaining whether she carried on her activities during workhours, or in the credit department while she was engaged in her work in violation of company rules. Indeed, McLean had been expressly informed that her campaign was carried on in the rest- room, and during lunch hours. Nor was she informed that its purpose, as Respondent now contends, was merely to ascertain the source of Frese's information concerning "other people's salaries," a subject which it deems to be confidential. On the entire record, I am convinced and find that having been informed of Frese's campaign to secure higher wages for Respondent's women employees, McLean was determined to put an end to that campaign and that he pursued his inquiry of Frese for that coercive and restraining purpose. Respondent concedes that Section 7 of the Act guarantees Frese the right to engage in "concerted activities for the purpose of mutual aid or protection." It contends, however, that Frese was not engaged in any "concerted" activity, but only in an "isolated, individualistic activity [having] no more relation to protected activities than her action in filing an unemployment compensation claim, a threatened slander suit, a workman's compensation claim, or any other claims she may imagine." There is no merit to this contention. It is well established that bringing a grievance concerning wages or working con- ditions to the attention of public authorities falls within the protection provided by Section 7 of the Act no less than the direct presentation of that grievance to the employer. Walls Manufacturing Company, Inc., 137 NLRB 1317, enfd. sub nom. International Ladies' Garment Workers' Union, AFL-CIO v. N.L.R.B., 321 F. 2d 753 (C.A.D.C.); N.L.R.B. v. Moss Planing Mill Co., 206 F. 2d 557, 559-561 (C.A. 4); Salt River Valley Water Users' Association v. N.L.R.B., 206 F. 2d 325, 328-329 (C.A. 9). "A proper construction [of Section 7] is that the employees shall have 1 Kopriva testified that he put Frese on "30 days probation" during August 1964. 2Frese admitted that McLean told her "that if there was another complaint against [her] that [she] would be out." MONTGOMERY WARD & CO., INCORPORATED 11 the right to engage in concerted activities for their mutual aid or protection even though no union activity be involved, or collective bargaining be contemplated." N.L.R.B. V. Phoenix Mutual Life Insurance Company, 167 F. 2d 983 (C.A. 7). To establish that Frese was not engaged in a concerted activity , Respondent relies most heavily on her admission that she did not circulate her "petition " or ask other employees to sign that petition. I do not attach to that admission the significance attributed to it by Respondent . The context in which "petition" was referred to in the -testimony 3 makes it clear that it had reference to the procedure necessary to institute the investigation by the Labor Department of Respondent 's alleged violation of the Equal Pay Act. That investigation was already under way as the result of her "petition" filed with the Labor Department in mid-June 1964, and required no addi- tional signatures. In any event, the record abounds in credible evidence that Frese was otherwise engaged in concerted activity and that McLean had knowledge thereof. Thus, Leors, though apparently unfriendly to Frese and her campaign , testified that she reported to McLean that Frese had asked that she "go [along] with her," and that she heard Frese talking to groups of employees about salaries half a dozen times during the 2 or 3 weeks preceding September 10. Baker testified to the same effect. And, though Frese may have been mistaken about the date of the event, her testimony is undenied that prior to her termination she obtained and distributed copies of a reference manual, prepared by the Department of Labor, pertaining , inter alia, to the Equal Pay Act, to six named employees , including Leors. Contrary to Respondent's further contention , McLean's interrogation of Frese was not a mere casual act "having no-relation to protected activities" or coercive effect. The "most relevant factor" in determining whether interrogation is coercive is "whether the questions seem to seek information which the employer in good faith needs-as when individuals are asked whether they belong to the Union so that the employer can check the Union's claim to represent a majority, or to the contrary seem to seek information most useful for discrimination ." N.L.R.B. v. Firedoor Cor- poration of America, 291 F. 2d 328 (C.A. 2), cert. denied 368 U.S. 921 . Here, the interrogation was conducted under such circumstances as to disclose on its face that it was a kind which reasonably may be expected to impede and coerce employees in the free exercise of their statutory rights. Accordingly, the absence of independent unlawful conduct did not detract from its otherwise unlawful character . Charlotte Union Bus Station, Inc., et al., 135 NLRB 228, 229; Mallory Plastics Company, a division of P. R. Mallory & Co., Inc., 149 NLRB 1649. Turning now to the allegation of the complaint that Respondent "caused . Frese to terminate her employment ," I find no credible evidence in the record to support that allegation . The testimony being conclusive, indeed it was admitted by Frese , that she told McLean that she was quitting her job , it was incumbent on the General Counsel to establish by a preponderance of the evidence that Respondent forced or compelled her to quit. This, the General Counsel has failed to do. Though there is a conflict in the testimony with respect to the ultimatum announced by McLean which prompted Frese to submit her resignation , I find it unnecessary to resolve that conflict. Thus, whether McLean told Frese , as she claimed , that if she did not like the wages she was getting she could quit , or whether, as McLean testi- fied, he told her "to get back to work" but, if there were "more customer complaints," disciplinary action would be taken .4 Neither version compelled or required Frese to terminate her employment. Accepting Frese's version , it must be concluded that the mere invitation to quit if she did not like the wages cannot , under the circumstances existing here, be sufficient to conclude that her termination was thereby forced upon her, or that she was con- structively discharged . Alexander Manufacturing Company, 110 NLRB 1457; Morris .Seidmon, et al., d/b/a Southwester Co., 111 NLRB 805, 823 (Karl Aavik); Action Wholesale , Inc., d/b/a A. L . French Co., 145 NLRB 627. On the other hand, if it was a warning by McLean that disciplinary action would be imposed if further complaints concerning her conduct were received which trig- gered her quitting, I find nothing in that warning which forced or required Frese to do so. This is especially true here where the warning was immediately preceded by McLean's instructions to her that "she better get back to work." There is further evidence in the record to sustain a finding that Frese's termina- tion was purely voluntary and had been long contemplated by her. Though she twice denied before me that she told McVey , in Respondent's medical department, 3 See transcript of testimony , page 26. 4 See footnote 2, supra. 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as early as July 24, 1964, "that she was thinking of resigning," the transcript of her testimony at her workmen's compensation hearing on December 17, 1964, establishes that she there testified that on July 24 she told McVey that she "was going up and resign." Though Frese sought, before me, to attribute this remark to differences she had with Kopriva, including her reaction to a nervous tremor of the hands with which Kopriva was afflicted and which made her "nervous," she testified "that wasn't the reason [she] walked out ... the 10th day of September," and that it was the events of the latter date which brought about her termination. There is no merit to the General Counsel's contention that Respondent "created an intolerable and humiliating situation for Mrs. Frese, which would have justified her immediate walking out if, ad arguendo, she had done so." There is no credible, probative evidence in this record that Respondent created any such "intolerable and humiliating situation." The cases relied on by the General Counsel 5 to establish that Frese was constructively discharged are inapposite and clearly distinguishable from the circumstances present here. In sum, I have no hesitation in concluding that Frese voluntarily relinquished her employment with Respondent. In arriving at that conclusion I have not only carefully reexamined the entire record, but have also been influenced by my observa- tion of her demeanor while testifying before me. She impressed me as an articulate, aggressive, and headstrong employee, but possessed of a temper easily aroused, a temper to which she gave hasty expression on September 10 by announcing her voluntary termination. While Respondent may have no regrets because she is no longer employed by it, that fact, even in light of the violation herein found, is not sufficient for me to conclude that her termination was other than voluntary. III. THE REMEDY Having found that Respondent engaged in an unfair labor practice, I recommend that it cease and desist therefrom and that it take certain affirmative action necessary and designed to remedy and to remove the effect of the unfair labor practice and to effectuate the policies of the Act. I have so concluded not only because the viola- tion found herein was committed by an official high in Respondent's hierarchy, but because Respondent has recently been found guilty of similar unfair labor practices as appear by the reported Board Decisions noted below and of which Decisions I have taken official notice.6 Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. By interrogating Frese concerning a petition seeking Respondent's compliance with the Equal Pay Act of 1963, Respondent violated Section 8(a)(1) of the Act. 2. The aforesaid unfair labor practice affects commerce within the meaning of Section 2 (6) and (7) of the Act. 3. Respondent did not cause Frese to terminate her employment. 4. Except as noted in Conclusion of Law No. I immediately above, Respondent did not otherwise violate Section 8 (a) (1) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is hereby recommended that the Respondent, Montgomery Ward & Co., Incorporated, Chicago, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning the preparation or circulation of a petition among its employees seeking Respondent's compliance with the Equal Pay Act of 1963. (b) In any similar or like manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist 5 Meyer and Welch, Inc., 96 NLRB 236; General Adjustment Bureau, Inc., 142 NLRB 723; New French Benrol Cleaners and Laundry, Inc., 139 NLRB 1176; Ra Rich Manu- facturing Corporation, 120 NLRB 503; Marathon Electric Mfg. Corp., 106 NLRB 1171. 9 See 142 NLRB 650; 146 NLRB 76 (February 25, 1964) ; 150 NLRB 1374 (Jan- uary 29, 1965). MONTGOMERY WARD & CO., INCORPORATED 13 any labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement re- quiring membership in a labor organization as a condition of employment as author- ized in Section 8(a) (3) of the Act. 2. Take the following affirmative action which it is found will effectuate the pur- poses of the Act: (a) Post in its offices and stores at Chicago, Illinois, copies of the attached notice marked "Appendix." 7 Copies of said notice, to be furnished by the Regional Direc- tor 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. (b) Notify the Regional Director for Region 13, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.8 Except as Respondent has been found guilty of unlawfully interrogating Frese con- cerning the matter described in Conclusion of Law No. 1 , it is recommended that all other allegations of the complaint charging Respondent with other unlawful conduct be dismissed. 7 If this Recommended Order Is adopted by the Board , the words "a Decision and Order" shall be substituted for the words " the Recommended Order of a Trial Examiner" in the notice. If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals , Enforcing an Order" for the words "a Decision and Order". s If this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 13, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the polices of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT interrogate our employees concerning the preparation or cir- culation of a petition among our employees seeking compliance with the Equal Pay Act of 1963. WE WILL NOT in any similar or like manner interfere with , restrain, or coerce employees in the exercise of their right to self-organization , to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing , or to engage in other concerted activities for the pur- poses of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. MONTGOMERY WARD & CO., INCORPORATED, Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or complaince with its pro- visions, they 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. 828-7570.