Montgomery Ward & Co.

MONTGOMERY WARD & CO. Montgomery Ward & Co., Incorporated and Team- sters Automotive Workers Local Union 495, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 21- CA-13892, 21-CA-14221, 21-CA-14300, and 21- CA-14532 January 4, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On October 28, 1976, Administrative Law Judge Roger B. Holmes issued the attached Decision in this proceeding. Thereafter, the General Counsel and Re- spondent filed exceptions and supporting briefs, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge found that Respon- dent did not violate Section 8(a)(3) and (1) of the Act by laying off and reducing the working hours of cer- tain employees at its Fullerton, Norwalk, and Cano- ga Park auto service centers. The General Counsel excepts to this conclusion, alleging that the layoffs and cutback in hours were discriminatorily motiva- ted and a part of Respondent's overall antiunion campaign at its various stores. We agree. Commencing in mid-1975 the Union herein con- ducted organizing campaigns at Respondent's auto service centers located in the Los Angeles area. Sub- sequent to the filing of the first petition on July 1, 1975, in which the Union sought a representation election among the Fullerton employees, the Union filed, in rapid succession, petitions covering the em- ployees at several of Respondent's other service cen- ters. The coordination involved in this campaign is shown by the fact that, starting in September, the Union filed at least one representation petition per month, and in some months filed more than one. By January 1976, when the last petition was filed, em- ployees in at least half of Respondent's 16 Los An- The General Counsel excepts to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc. 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3. 1951). We have carefully examined the record and find no basis for reversing his findings. 234 NLRB No. 6 geles area stores had become active in the Union's organizing efforts. Initially. the Union's campaign was quite success- ful. On September 5, 1975, prior to the filing of the remainder of the petitions, the Fullerton employees voted to be represented by the Union. Thereafter, Respondent's response to the Union's efforts can only be characterized as revealing an extremely high degree of union animus. Furthermore, the evidence establishes that Respondent's labor relations manag- er, John Bennett, was active in managing Respon- dent's unlawful defensive efforts. Uncontradicted testimony reveals that he met at various times with employees at Respondent's Eagle Rock, Norwalk, and Canoga Park service centers. It is therefore evi- dent that, as Respondent's efforts were generally coordinated, the remarks made by lower level super- visors, as discussed below, should be analyzed within the context of such a coordinated effort. The pervasiveness of Respondent's unfair labor practices throughout these campaigns at the various facilities has been revealed with particularity in the Administrative Law Judge's Decision, and there is no need to catalog them again here. Rather, it may be briefly stated that Respondent's animus is amply demonstrated by a partial listing of such violations: repeated instances of illegal interrogations, the cre- ation of an impression of surveillance, the threatened loss of insurance benefits or incentive pay, and the imparting to employees of the message that it would be futile for them to select a union to represent them. Additionally, the evidence reveals that several man- agers from Respondent's various locations on sepa- rate occasions stated in the presence of others that the selection of the Union to represent employees had resulted or would result in retaliatory measures against them. Around the end of December 1975, Labor Relations Manager Bennett presided over a meeting between management and employees from the Eagle Rock facility. In the presence of Bennett, Store Manager Matheny threatened to cut the hours of employees if the Union won. Similar incidents oc- curred at Respondent's Norwalk service center. In November and December 1975, Service Manag- er Elgie clearly revealed in conversations with Assis- tant Manager McAffee Respondent's policy of retali- ation against successful union campaigns.2 In No- vember, Elgie noted to McAffee that the employees had voted the Union in at Fullerton and that most of the employees there had been laid off. In December 2 The Administrative Law Judge, while not discrediting McAffee's ac- count of these statements, found that they were not violations of the Act solely due to McAffee's supervisory status. Such private discussions among supervisors, while not violations of the Act, are nevertheless of significant value in evaluating whether Respondent intended to retaliate against em- ployees who chose to be represented by the Union. 13 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Elgie counseled McAffee against seeking a position of mechanic, stating that if the Union won at Nor- walk the mechanics were going to be laid off. Finally, variations on this theme of retaliation were played before employees at Respondent's Canoga Park ser- vice center. Prior to the election at this facility, for- mer Canoga Park Assistant Service Manager Feola, who had recently been transferred and promoted to service manager at Eagle Rock, visited employee Hensey and violated the Act by telling him that the Union had lost the election at Eagle Rock and that the store would probably get rid of the union sup- porters there. Next, shortly before the Canoga Park election, Store Manager Harris informed employees that he would view the outcome of the election as a personal reflection on himself, which we have found was a threat of retaliation in violation of the Act. In the Canoga Park election the Union received a ma- jority of the votes cast and within days several em- ployees were laid off or received severe cutbacks in their hours. So that the message implicit in these measures would not be lost on the employees, Service Manager Ratliff told employee Coe on the day he was laid off, "Didn't [he] know that if the union came in, that there might be a bunch of layoffs." Finally, subsequent to these layoffs, employee Hen- sey expressed to Ratliff the fear that Respondent would try to get rid of all the employees at Canoga Park. In response, Ratliff reinforced this fear by re- ferring to the use to be made of information con- tained in a book he carried with him, which again we have found to be an implicit threat of layoff or repri- sal. When these repeated threats of retaliation are viewed within the framework of a more general showing of union animus and a coordinated cam- paign conducted by Respondent, it is plain that the cutbacks and layoffs at all of the service centers where the Union received a majority of the votes cast were in fulfillment of these threats of retaliation, and were motivated, at least partially, by a discriminatory intent on the part of Respondent. The facts surrounding the layoffs and cutbacks are not in dispute. Subsequent to the filing of the petition at Fullerton, a majority of its employees voted on September 5, 1975, to be represented by the Union. In mid-November, four mechanics, Neal, Dunlap, James, and Blyzka, were laid off for an indefinite period. While the Administrative Law Judge viewed the timing of the layoffs, 2-1/2 months after the elec- tion, to be unpersuasive regarding discriminatory motivation, the facts are to the contrary. First, it is clear that Respondent retained a significant degree of antiunion sentiment at its Fullerton facility, as is revealed by our finding that Respondent discrimi- 3 The record indicates that mechanic Coe and employees Wolf, Regan, and Nellis had been laid off and employees Sigafoose, Duey, Bridenbaugh, and McCartney had had their hours cut back. nated against several of its Fullerton employees by illegally issuing written warnings to them in January 1976. At that time, when faced with the accusation by an employee that the discipline was nothing but punishment and harassment for voting the Union in, Supervisor Ziegler responded, "Well, you brought it on yourselves." Furthermore, in the intervening peri- od between the election and the layoffs, what had originally been an organizing campaign at a single location threatened to become a massive areawide, multifacility organizing drive, since in these 2 months petitions were filed covering employees at three other service centers operated by Respondent. The fact that Respondent referred to the Fullerton layoffs in its campaigns at other locations supports the conclu- sion that the Fullerton layoffs cannot be viewed in isolation, but must be considered a part of an overall campaign strategy intended to influence the outcome of these subsequent election campaigns. Such a use of the Fullerton layoffs, for example, occurred when Eagle Rock Store Manager Matheny invited his em- ployees to call the Fullerton store in order to get confirmation of the "cutbacks." At Norwalk the employees voted to be represented by the Union on January 9, 1976, and 5 days later three mechanics, Cliff, Kemp, and Schweizer, and one tire and battery man, McAffee, received cut- backs in hours. Finally, the Canoga Park service cen- ter employees voted in favor of representation on March 23, 1976, and by the end of the month eight employees either had been laid off or had had their hours cut back.3 In all instances, these cutbacks and layoffs were effectuated without prior warning. The General Counsel does not contend that Re- spondent discriminatorily selected the employees to cut back or lay off. Rather, he asserts that this retali- ation was a show of force leveled generally against the employees at those stores who selected the Union to represent them. According to the General Coun- sel: Respondent's cutbacks at Norwalk [and Cano- ga Park], as well as its layoffs in Fullerton, were a display of power. In simple and forceful terms, it told employees that the Union was powerless to prevent Respondent's retaliation against employ- ees for their union support. Although this power display could not alter the Norwalk election re- sults, it might well affect those at other of Re- spondent's facilities. Therefore, Respondent's defense that the cutbacks and layoffs were based on seniority does not pre- clude the finding that its actions were discriminatory, 14 MONTGOMERY WARD & CO. if its actions were at least based in part on union considerations, which they plainly were. Respondent's argument that its actions at Fuller- ton, Norwalk, and Canoga Park were based solely on economic considerations is hollow. Turning initially to the explanation of the four Fullerton layoffs in mid-November 1975, it is clear that the evidence does not support Store Manager Presson's explana- tion to employee Dunlap that the layoffs were due to work being slow. On the contrary, Respondent's rec- ords reveal that the November income at the Fuller- ton service center was roughly $16,000, almost $1,000 over its budget projection. The fact that income from the center plummeted the following months is an inadequatepost hoc justification for its earlier layoffs, because it appears from the record that Respondent was forced to restrict its intake of work orders due to the layoffs, and it is therefore impossible to deter- mine whether or to what extent these later figures are based on external market conditions or on Respon- dent's unilateral actions in restricting its operations. Furthermore, if, as Respondent asserted at the hear- ing, its actions were based on the trailing off of busi- ness toward the end of the calendar year, one would expect that the layoffs would have also occurred in a similarly gradual fashion. However, the record shows that the layoffs occurred with unexplained swiftness, in that all four occurred within a week's span. For these reasons, Respondent's economic justification for the Fullerton layoffs must be rejected. Likewise, the layoffs and cutbacks at Norwalk and Canoga Park cannot be explained on economic terms alone. The Administrative Law Judge erred in ana- lyzing the Respondent's financial record for Norwalk in concluding that, had the Respondent maintained its January payroll at the level of the December pay- roll, Respondent would have experienced a net loss for January 1976. In view of the fact that the Nor- walk operations had not suffered a net loss in the 3 years previous to the cutbacks, such a consequence, if true, could well support the conclusion that Re- spondent's cutbacks were based on economic consid- erations. However, the Administrative Law Judge used the figure for the December 1975 auto service income, which was approximately 25 percent higher than the December payroll figure. As a result, he increased the size of the drop in profits from a mini- mal $148 to a total decrease of approximately $2,200 in comparison with the previous month, which, based on these calculations, would have resulted in a net operating loss of $468 for January 1976. Rather, it is clear that even if Respondent had maintained its De- cember payroll level in January, it still would have 4 The Administrative Law Judge incorrectly used the figure of $1.928 as Norwalk's April 1976 net auto service income, whereas the correct figure is $4.562. This apparently inadvertent error. however, is insufficient to affect realized a net profit at Norwalk for that month. The Administrative Law Judge erred substantially on this matter. 4 The record reveals additional weaknesses in Re- spondent's argument that its motivation was solely economic. As stated earlier, the layoffs and cutbacks at both of these locations occurred within days of the elections at these stores. At Norwalk, uncontroverted testimony indicates that, subsequent to the cutbacks, Respondent occasionally had to lock some of the doors to its service center in order to restrict the intake of work orders, which, as was the case with the Fullerton facility, could well have accounted for the subsequent drop in income. While these cutbacks at Norwalk occurred after Respondent experienced a decline in income, Respondent's records reveal that, during the month preceding the cutback, the Nor- walk payroll was approximately 10 percent less than its budget allocation, and for several months after the cutbacks this understaffing increased to almost 20 percent of the budget allocations. It therefore ap- pears that Respondent was not "overstaffed" at Nor- walk prior to the cutbacks. Serious questions also arise with respect to Respon- dent's justification for the cutbacks and layoffs at Canoga Park. For several months prior to the elec- tion at Canoga Park, Respondent's actual payroll there exceeded the budget limitations, yet for the 4 months preceding the election no layoffs or cutbacks occurred. Suddenly, in the week following the elec- tion, eight employees were cut back or laid off. Re- spondent testified that it was advised by its counsel to impose a moratorium on layoffs during the elec- tion campaign, but this explanation in itself is insuffi- cient. Undisputed is the fact that the cutbacks oc- curred on the heels of a union victory at Canoga Park under conditions which had existed for an ex- tended period of time. The natural inference to be drawn from such a sequence of events is that Re- spondent intended its employees to conclude that it was punishing them for having chosen the Union as their representative. Significantly, the evidence also indicates that Re- spondent departed from past practice in primarily selecting mechanics for layoff, rather than mechan- ics' helpers or tire busters, and that it treated employ- ees at Canoga Park, Norwalk, and Fullerton more severely than it did its employees at other stores. Respondent's records indicate that, while mechanics have been laid off at its various facilities in the past, it was typical for Respondent to retain the more skilled mechanics and dismiss the tire busters and mechanics' helpers. At Respondent's Lynwood, West our decision inasmuch as the layoffs and reduction of hours at that location occurred in January 1976. 15 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Los Angeles, and Costa Mesa service centers, where no elections have occurred, the record shows that, over a 2-year period, 10 employees had been laid off. Of these 10, the evidence shows that only 2 were mechanics and the rest were lesser skilled employees. However, of the eight employees laid off at Canoga Park and Fullerton, five were mechanics. In addition, the extent of the layoffs at the stores where no elec- tion occurred is not analogous to the extent of the cutback and layoffs at the stores here in question. At Lynwood, West Los Angeles, and Costa Mesa, no more than two layoffs occurred within any single month. However, at Fullerton, Norwalk, and Canoga Park unannounced cutbacks and layoffs occurred that affected from four to eight employees at each facility, in each case all within a matter of a week's time. The economic circumstances prevailing at these facilities do not account for the distinctly more dras- tic measures taken at the latter three facilities. These additional considerations further support our conclu- sion that Respondent was discriminatorily motiva- ted, at least in part, in cutting back and laying off employees at these three service centers. In view of the above, we conclude, contrary to the Administrative Law Judge, that the General Counsel has established a primafacie case, which Respondent has failed to rebut, showing that discriminatory mo- tives were operative in its decision to cut back or lay off employees at its Fullerton, Norwalk, and Canoga Park auto service centers. We therefore find that Respondent violated Section 8(a)(3) and (1) of the Act when it cut back the hours of and laid off these employees. Accordingly, we shall include appropriate remedial provisions for these violations in our Or- der.5 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Montgomery Ward & Co., Incorporated, Los An- geles, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Issuing corrective interviews to employees be- cause of the union activities of its employees or to discourage membership in a union. (b) Failing to implement and to make applicable to its auto service center employees at Fullerton, Cali- fornia, Respondent's 1975 wage plan, which it had implemented and made applicable to all of its other 5 It appears from the record that some of the employees who were laid off or had their hours of employment reduced subsequently have been recalled or have had their working hours restored to their previous levels. greater Los Angeles geographical area locations on October 2, 1975. (c) Threatening employees with denial of promo- tions, cutbacks in working hours, loss of incentive pay, loss of insurance benefits, lower wages, and threatening to rid itself of employees if they select a union as their collective-bargaining representative. (d) Interrogating employees as to what the employ- ees think about unions, their union sympathies and union activities, what they think the Union could do for the employees, why they want a union as their collective-bargaining representative, how they intend to vote in a representation election, and how they have voted in a representation election. (e) Creating among employees the impression of surveillance of their union activities. (f) Telling employees that a vote for union repre- sentation would be taken by Respondent as a person- al affront to the manager or a reflection on the man- ager. (g) Attributing the layoff of employees to the fact that they voted in a union to represent them. (h) Misrepresenting to employees that a union or- ganizer had become belligerent, caused a commo- tion, carried a gun, and had to be thrown off Respon- dent's premises at a Board-conducted election. (i) Conveying to employees that it would be futile for them to select a union as their collective-bargain- ing representative. (j) Laying off employees because they have selected a union as their collective-bargaining representative. (k) Reducing employees' working hours because they have selected a union as their collective-bargain- ing representative. (1) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the purposes of the Act: (a) Make whole the employees at the Fullerton, California, auto service center for any loss of earn- ings they may have suffered due to Respondent's failure to make the 1975 wage plan applicable to them, in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as set forth in Florida Steel Corporation, 231 NLRB 651 (1977).6 (b) Offer employees William Neal, Lyle Dunlap, Richard James, and Robert Blyzka at its Fullerton, California, auto service center and employees Ron- ald Coe, Pat Nellis, Don Regan, and Kevin Wolf at its Canoga Park, California, auto service center im- mediate and full reinstatement to their former posi- These matters are more appropriately resolved at the compliance stage of this proceeding. 6 See, generally, Isis Plumbing & Hearing Co., 138 NLRB 716 (1962). 16 MONTGOMERY WARD & CO. tions or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their se- niority or other rights and privileges. Offer employ- ees Buddy Cliff, Allan Kemp, Terry Schweizer, and Stephen McAffee at its Norwalk, California, auto service center and employees Jeff Sigafoose, Patrick Bridenbaugh, Elizabeth Duey, and Brian McCartney at its Canoga Park, California, auto service center immediate and full reinstatement to their former hours of employment without prejudice to their se- niority or other rights and privileges. (c) Make the above-named employees whole for any loss of earnings they may have suffered by rea- son of Respondent's discriminatory layoffs and/or reductions in hours, with backpay to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and interest thereon as set forth in Florida Steel Corporation, 231 NLRB 651 (1977).7 (d) Rescind the corrective interviews which were issued on January 22, 1976, to Bruce Snow, Dale Matheny, and Jose Villanueva and expunge from those employees' personnel records any reference to said corrective interviews. (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all oth- er records necessary to analyze the amount of back- pay due under the terms of this Order. (f) Post at its Fullerton, Eagle Rock, Norwalk, and Canoga Park facilities copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by the Respondent, shall be posted by the Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees at each loca- tion are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said no- tices are not altered, defaced, or covered by any oth- er material. (g) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. r See fn. 6. supra 8 In the event that this Order is enforced by a Judgment of a United States Court of Appeals. the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT issue corrective interviews to em- ployees because of the union activities of our em- ployees or to discourage membership in a union. WE WILL NOT fail to implement and to make applicable to our auto service center employees at our Fullerton, California, location, our 1975 wage plan which we implemented and made applicable to all of our other locations in the greater Los Angeles geographical area on October 2, 1975. WE WILL NOT threaten our employees with de- nial of promotions, cutbacks in working hours, loss of incentive pay, loss of insurance benefits, lower wages, and threaten to rid ourselves of our employees if they select Teamsters Automotive Workers Local Union 495, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor orga- nization, as their collective-bargaining representa- tive. WE WILL NOT interrogate our employees as to what our employees think about unions, their union sympathies and union activities, what they think a union could do for them, why they want a union as their collective-bargaining representa- tive, how they intend to vote in a representation election, and how they have voted in a representa- tion election. WE WILL NOT create among our employees the impression that we are engaging in surveillance of their union activities. WE WILL NOT tell our employees that a vote for union representation would be taken by us as a personal affront to our manager or a reflection on our manager. WE WILL NOT attribute the layoff of our em- ployees to the fact that they have voted for a union to represent them. WE WILL NOT misrepresent to our employees that an organizer for Teamsters Automotive Workers Local Union 495, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, had become belligerent, caused a commotion, carried a gun, and had to be thrown off our premises at a repesentmation elec- tion. WE WILL NOT convey to our employees that it would be futile for them to select a union as their collective-bargaining representative. 17 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT lay off employees because they have selected a union as their collective-bargain- ing representative. WE WILL NOT reduce employees' working hours because they have selected a union as their collec- tive-bargaining representative. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the ex- ercise of the rights guaranteed to them by Section 7 of the Act. WE WILL make whole the employees at our auto service center at Fullerton, California, for any loss of earnings which they suffered due to our failure to make the 1975 wage plan applicable to them. WE WILL offer employees William Neal, Lyle Dunlap, Richard James, and Robert Blyzka at our Fullerton, California, auto service center and employees Ronald Coe, Pat Nellis, D)n Regan, and Kevin Wolf at our Canoga Park, California, auto service center, immediate and full reinstate- ment to their former positions or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges. WE WILL offer employees Buddy Cliff, Allan Kemp, Terry Schweizer, and Stephen McAffee at our Norwalk, California, auto service center and employees Jeff Sigafoose, Patrick Bridenbaugh, Elizabeth Duey, and Brian McCartney at our Ca- noga Park, California, auto service center imme- diate and full reinstatement to their former hours of employment without prejudice to their seniori- ty or other rights and privileges. WE WILL make whole the above-named em- ployees for any loss of earnings they may have suffered by reason of our discriminatory layoffs and/or reductions in hours, plus interest. WE WILL rescind the corrective interviews which were issued on January 22, 1976, to em- ployees Bruce Snow, Dale Matheny, and Jose Vil- lanueva and expunge from those employees' per- sonnel records any reference to those corrective interviews. MONTGOMERY WARD & Co., INCORPORATED DECISION STATEMENT OF THE CASE ROGER B. HOLMES, Administrative Law Judge: The charge in Case 21-CA-13892 was filed on August 12, 1975, by Teamsters Automotive Workers Local Union 495, In- ternational Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, herein called the Union. The charge in Case 21-CA-14221 was filed on De- cember 5, 1975, by the Union. The charge in Case 21-CA- 14300 was filed on January 14, 1976, by the Union. The charge in Case 21-CA-14532, which was formerly desig- nated as Case 31-CA-5987, was filed on March 18, 1976, by the Union, and a first amended charge in that case was filed on April 9, 1976, by the Union. A complaint and notice of hearing in Case 21-CA-13892 was issued on October 14, 1975, on behalf of the General Counsel of the National Labor Relations Board, herein called the Board, by the Regional Director for Region 21 of the Board. An order consolidating cases, consolidated amended complaint and amended notice of hearing in Cases 21-CA-13892, 21-CA-14221, and 21-CA-14300 was issued on March 12, 1976, on behalf of the General Counsel of the Board by the Regional Director for Region 21 of the Board. An amended order consolidating cases, amended consolidated complaint and second amended no- tice of hearing in Cases 21-CA-13892, 21-CA-14221, 21- CA-14300, and 21-CA-14532 was issued on April 30, 1976, on behalf of the General Counsel of the Board by the Regional Director for Region 21 of the Board. The amend- ed consolidated complaint was further amended on June 8 and 21, 1976, during the course of the hearing on motions made by the counsel for the General Counsel. The General Counsel alleges that Montgomery Ward & Co., Incorporated, herein called Respondent, has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, herein called the Act. Respondent filed answers to the original complaint and the amended complaints re- ferred to above and denied the commission of the alleged unfair labor practices. The hearing commenced on June 7, 1976, before Admin- istrative Law Judge James M. Kennedy. At the outset of the hearing, the formal exhibits revealed that one of the unfair labor practice charges in this proceeding, Case 21- CA-14532, had originally been filed in Region 31 of the Board under the former designation of Case 31-CA-5987. Prior to his appointment as an Administrative Law Judge of the Board, James M. Kennedy had served as an attorney in Region 31 of the Board during the time that particular charge was pending under investigation in that Regional Office. Accordingly, Administrative Law Judge Kennedy immediately disqualified himself from further participation in this proceeding prior to the presentation of any evidence by any of the parties. I was designated to replace Adminis- trative Law Judge Kennedy. The hearing was held before me on June 8, 9, 10, 11, 14, 15, 21, 22, 23 and 24, 1976. The proceedings were conduct- ed in Los Angeles, California, except for June 10 and 11, 1976, when the hearing was held in Canoga Park, Califor- nia. Briefs were timely filed before September 7, 1976, by the General Counsel and by Respondent and have been duly considered. 18 MONTGOMERY WARD & CO. Upon the entire record ' and based upon my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTION At all times material herein, Respondent has been a cor- poration engaged in the retail sale and distribution of con- sumer goods at various department stores and auto service centers located throughout the United States and has oper- ated auto service centers in the State of California at vari- ous locations, including, among others, Canoga Park, Ea- gle Rock, Fullerton, Huntington Beach, Norwalk, Rose- mead, and Santa Ana, California. In the normal course and conduct of its business opera- tions, Respondent annually derives gross revenues in ex- cess of $500,000 and annually sells and ships products val- ued in excess of $50,000 directly to customers located out- side the State of California. Upon these admitted facts, I find that Respondent has been at all times material herein an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II1. THE LABOR ORGANIZATION INVOLVED It is admitted that the Union at all times material herein has been a labor organization within the meaning of Sec- tion 2(5) of the Act. B. The Events at Fullerton With regard to the auto service center at Fullerton, the complaint alleges that Respondent did the following: (1) discriminatorily discharged John Caudill on August 9, 1975; (2) discriminatorily laid off from work Lyle Dunlap, William Neal, and R. W. James on November 14, 1975; (3) discriminatorily laid off from work Robert Blyzka on No- vember 20, 1975; (4) discriminatorily issued written warn- ing notices to Bruce Snow, Dale Matheny, and Jose Villan- ueva on January 22, 1976; (5) suspended scheduled wage increases for employees beginning in September 1975 be- cause the employees selected the Union as their collective- bargaining representative on September 5, 1975; and (6) issued to employees on August 29, 1975, a document which conveyed to employees that union representation would in no event result in improvements in their conditions of em- ployment. As to the first 4 items summarized above, the General Counsel alleges them to be violations of Section 8(aX I) and (3) of the Act. As to items 5 and 6 above, the General Counsel alleges them to be violations of Section 8(a)(1) of the Act. Ill. THE ALLEGED UNFAIR LABOR PRACTICES A. The Representation Proceedings There were eight Board-conducted elections during 1975 and 1976 at Respondent's auto service centers in the Los Angeles area. By the time of the hearing in this proceeding, Respondent had 17 retail stores in the greater Los Angeles area, but during the period that the elections were conduct- ed, there were 16 stores in operation. The Charging Party in this proceeding was the labor organization involved in these elections. The following chart shows the locations of the facilies involved; the dates on which the representation petitions were filed with the Board's Regional Office; the dates on which the Board-conducted elections were held, and the outcome of the elections. Loc.Lt ion Fullerton SaLitJ A-Il ]i aiLt IK toll Norv.lik Petition Filed 9/26/75 1/d/t75 Election le ld 9/5/75 1 /2/76 1 /16/76 Union us. comr won lost lost 1/16/75 2/ 1/9/76 won I Certain errors in the trarfscnpt have been noted and are hereby correct- ed. 2 An earlier representation petition had been filed on September 19, 1975, by the Union seeking an election among the auto service center em- ployees of Respondent at the Norwalk facility. A hearing on that petition was scheduled to be held on Cctober 16. 1975, but a withdrawal request filed by the Union was approved on that same date by the Regional Director for Region 21 of the Board. 1. John Caudill A threshold issue with respect to Caudill is whether he was a rank-and-file employee at the time of his termina- tion, as the General Counsel contends, or whether Caudill was a supervisor within the meaning of Section 2(11) of the Act or a managerial employee, as Respondent contends. John Caudill worked for Respondent for about 1-1/2 years.3 He began in February 1974, and he was discharged by Respondent on August 9, 1975. Caudill was the assis- tant service manager of the mechanical department at Re- spondent's auto service center at Fullerton. He wore a uni- form at work with his name and job title on it. Caudill estimated that there were about 30 employees at the Fullerton auto service center at the time of his termina- tion. Of that number, he estimated that approximately 20 employees worked in the mechanical department. The auto service center was open for business from 8:30 a.m. to 9:30 p.m. on Monday through Saturday and from 10 a.m. to 6 p.m. on Sunday. Caudill said that he worked on Sundays from 10 a.m. to 6 p.m.; on Mondays from 1:30 p.m. to 9:30 p.m.; and on Tuesdays, Wednesdays, and Saturdays from 8:30 a.m. to 5 p.m. John Ellis was the service manager at the time.4 The parties agreed that he was a supervisor with- in the meaning of the Act. Ellis' work schedule was differ- 3 Caudill had previously worked as a service manager at a K-Mart auto service center and prior to that as an owner and operator of a Chevron service station. 4 Caudill said that Service Manager Ellis had signed a union authoriza- tion card and Caudill testified: "He was favorable and I thought, agreeable, to the union." Bruce Snow testified that Ellis "was for the union coming in the shop and he signed an authorization card also." Eagle Kock Rosemead Montebello Canoga Park 11/21/75 1 2/29/75 1/26/76 1/29/76 1/23/76 3/5/76 3/24/76 3/23/76 lost lost lost won 19 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent from Caudill's schedule. Ellis did not work on Sundays or Tuesdays. Ellis worked from 8:30 a.m. to 5 p.m. on Mondays; 1:30 p.m. to 9:30 p.m. on Wednesdays; and 8:30 a.m. to 5 p.m. on Thursdays, Fridays, and Saturdays. Cau- dill said that Ellis used to work from 8:30 a.m. to 5 p.m. on Wednesdays until the last part of July 1975. At first Caudill denied that it was his understanding that as assistant service manager he was to run the department when Service Manager Ellis was not there. However, when confronted with conflicting testimony previously given during his unemployment compensation hearing, Caudill said that his prior testimony was truthful. The following exchange took place during the cross-examination of Cau- dill by Respondent's attorney: Q. Well, wasn't it your understanding that as Assis- tant Manager that you would run the department when Ellis wasn't there? A. No, it was not my understanding. I was never told that. Q. I refer you to page 26 of the transcript before the Unemployment Compensation Board. "Question: As Assistant Manager, was it your under- standing that you would run the service department when the manager wasn't there?" "Answer: That's correct." Do you recall giving that answer? A. Yes, I do. Q. Was that answer truthful when you gave it? A. That's correct, yes, sir. At the time of his discharge Caudill was paid $4 an hour. 5 Caudill punched a timeclock. On direct examination when he was asked if he ever signed any timecards, Caudill denied that he had done so except for his own timecard. On cross-examination he again denied that he had ever signed any timecards except his own. He said that he could not remember whether he ever initialed any timecards. When he was shown the timecards of several employees, Caudill acknowledged his initials on the timecards of seven em- ployees. He was unable to remember the circumstances under which he had initialed the timecards of the employ- ees.6 5 Caudill said that he had sought a wage increase in June 1975, but he was unsuccessful. Caudill attributed the abrupt refusal by Store Operating Manager Ziegler to grant him a raise in pay as the impetus for the union organizational activity. Caudill testified: "I went up to Mr. Ziegler, the operating man, and asked him for a raise. He told me, no, and asked if I'd close the door as I left. So I came back and got the number of Local 495 in Los Angeles from an employee." A different version was given by Kenneth Ziegler who had been store operating manager for about 4 years at Respondent's Fullerton store. At the hearing, Ziegler testified to the correctness of the portion of his pretrial affidavit where he stated: "On occasion Caudill called me on the telephone. Caudill asked me when he was going to get a raise and said he deserved one. I said that I didn't think he deserved one and told him where he was on the pay scale, and then I told him his work was not outstanding because of the customer complaints. Caudill would not handle the customer complaints but refer them to management." Ziegler's best recollection was that this took place about 8 months prior to Caudill's termination. 6 Caudill said that in July 1975, while Service Manager Ellis was on vacation, he was told by Supervisor Don Breeze, who supervised the acces- sories department, that Caudill did not have the authority to sign the time- cards because Caudill was not in management. Breeze was not called as a witness at the hearing. Robert Blyzka, a mechanic, testified that his timecard had been initialed Caudill estimated that he spent about 50 percent of his working time at the service desk in the auto service center where he received customers' orders for work on their vehi- cles and then gave the work orders to the mechanics. In accordance with the law of the State of California, Caudill gave the customer an estimate of the cost of the repair at the time of taking the customer's order. He estimated that he spent 20 percent of his time obtaining parts pertaining to the work orders and distributing the parts to the me- chanics. He got the parts from the supply room near the service desk or from the manager of the auto accessories department. The remainder of his worktime was spent in a variety of duties which included performing tuneups on cars "if we were running late on some cars," which he estimated occurred two or three times a week; sweeping and scrubbing floors; cleaning windows and changing tires and batteries.7 In determining to whom to give the work orders, Caudill said that the mechanic who was not doing any work at that particular time received the work order, except for work on smog control devices. He explained that the latter work went to mechanics who were licensed by the State of Cali- fornia to perform such work. He said that he based his decision to give the work orders on "the available mechan- ic that wasn't doing anything, or a mechanic that had just completed work, or a mechanic that hadn't had a job, or a mechanic in the case of smog devices, the pollution devices, we gave it to the certified mechanic." He also said that if two or three mechanics were all available at the same time for work: "It didn't really matter. We gave it to any me- chanic that was licensed for that particular type of work order." Caudill denied that he took into consideration the abilities of the mechanics, except for those who were li- censed to work on smog control devices. In every instance but one, the employees invariably per- formed the work which Caudill gave them to perform. The one exception was Jose Villanueva. 8 According to Caudill, he told Villanueva to repair a foreign car and Villanueva replied that he did not have the proper tools to do so. Caudill told Villanueva that another employee had the tools, thereby suggesting that Villanueva could obtain the tools from that employee. Caudill said that Villanueva still by Caudill, Ellis, and Ralph Negron in situations where he had failed to punch in or in overtime situations. He said that in such situations he would take his timecard to whoever was running the service desk. 7 Ralph Negron, who described himself as being strongly for the Union and who served as the Union's election observer in the Board-conducted election at the Fullerton facility, gave a different version of Caudill's duties. Negron said that Caudill spent about 80 percent of his time at the service desk where Caudill wrote service orders; made sure that everything was running smoothly; made sure that each mechanic had ajob; and made sure that the mechanic's work was going out as scheduled. According to Negron, during the other 20 percent of Caudill's worktime Caudill would "walk around the shop, just kind of talk to everybody there. He would just come over and start talking to you and you are trying to do your work and he is still talking to you and he'd walk off and start talking to someone else then." Negron acknowledged that one of the purposes for Caudill's talking to people was to find out how far along the jobs were that they were working on. " In the course of a normal workday, Caudill estimated that he would ask mechanics to do work about 15 to 20 times each day. Based on that esti- mate, he believed that he would make about 3,750 such requests to mechan- ics to perform work over a year's period of time, and that Villanueva was the only one who had failed to perform work which Caudill had asked to be done. 20 MONTGOMERY WARD & CO. did not perform the job, so Caudill reported the foregoing to Store Operating Manager Zeigler and asked him to take care of the matter. Caudill said that Zeigler then spoke with Villanueva. On direct examination Caudill testified, "I didn't listen to the conversation," but on cross-examination he acknowledged that he was standing a few feet away from them and heard a part of the conversation. He said: "I believe he told him to do the work or leave. I believe that's the way he said it." 9 Villanueva then did the work which Caudill had originally given him to do. Caudill said that Villanueva also apologized to him for causing Caudill that trouble. Robert Blyzka, a mechanic, said that he had never re- fused to perform a work order which Caudill had given to him. However, there were times when Blyzka had asked Caudill to give the work order to someone else if Blyzka felt that he was not suited for the job or did not have the tools needed for that particular job. Sometimes a customer would return to the auto service center and complain about the work done on his car. If the mechanic who had done the work previously was present, then Caudill gave the work to that mechanic. However, if that particular mechanic was not at work, then Caudill said he would give the work to "any mechanic that was avail- able." Caudill handled what he described as minor com- plaints from customers by asking a mechanic to see what was wrong with the car. Caudill said that he referred major complaints, which he described as those where the custom- er was seeking a refund of his money, to Ziegler or to a personnel supervisor. At first, Caudill denied that there was ever a situation where he would have to take a man off one job and put him on another job in order to get the job out, but then Caudill acknowledged that he had done so when Ziegler had in- structed him to give a customer preference. Caudill testi- fied on cross-examination: Q. Did you ever have a situation where you would have to take a man off one job and put him on another job, in order to get it out? A. No, sir. Q. Never? A. I don't believe so, sir. Q. There was never any situation you can think of where you took a man off one job and put him on another job to finish that job first; is that correct? A. I believe so, sir. I may have asked another mechanic too - if he would do another job. I don't remember, no, sir. Q. I am looking at page 4 of your affidavit, where you said: "However, sometimes I was given an order by the assistant store manager, Mr. Ziegler, that a custom- er be given preference." In these circumstances, of course, you pulled some- one to do the job; is that correct? A. That's correct, absolutely. 9 Jose Villanueva testified that Ziegler told him: "You have to do thejob or you know the consequences and you can't refuse to do the job," Villanue- va said that he told Ziegler that he had not refused to do thejob. Villanueva Q. Mr. Ziegler told you, "Give the customer prefer- ence?" A. Yes, sir. He told me to take a mechanic off a job and to perform the other work; that's correct. Q. Then you went out and got the mechanic to do that job; isn't that correct? A. Yes, I did that. Q. All right. Now, do you remember that situation? That hap- pened once or more than once? A. I have no idea. Probably more than once. At first, Caudill also denied that he had pulled a mechan- ic off of one job on his own and put that mechanic to work on another job, but then acknowledged that he had "asked," but did not "demand" that the mechanic do so. Caudill testified on cross-examination: Q. Did you pull a mechanic off one job on your own, and put him on another? A. No, sir, I don't believe so. Q. Again, referring to page 4 of your affidavit, where you say in the same context, in these same cir- cumstances, of course, you pulled someone to do the job. That is relating to this Ziegler situation: "I did this on my own in situations where a customer had a small job to perform and I knew that the car the mechanic was working on could remain at the center all day." Is that statement true and correct? A. That's true and correct. Q. Then is it true that you pulled mechanics off the job on your own to finish other jobs, didn't you? A. I didn't demand a mechanic to do anything. I asked him if [he] would do it. Q. Well, you pulled him off the job. That is your language in the affidavit, isn't it? If there is any question, I will show you. A. No, sir, there's no question. I asked the mechanic to do it. Q. And the mechanic responded to the assistant auto service manager by going over and doing the other job; isn't it correct? A. If he felt he should, yes. Q. Did they ever refuse you? A. I don't believe so. Dale Matheny, who had been a mechanic at Fullerton for about 6 years, did not recall specific instances where Caudill had taken him off of one job and placed him on another, but he said, "there would be occasions where you have just a fan belt or radiator hose where a guy was in a hurry. You know, some small job." Matheny was asked whether Caudill would say, "Listen, drop this job and go to another" and Matheny responded "yes." Matheny also said that when a customer brought a car back and had a complaint, Caudill would take him off a job and put him attributed the incident to a misunderstanding between Caudill and him. He explained that he did not have metric tools and that he was going on coffeebreak at the time that Caudill told him to do the job. 21 DECISIONS OF NATIONAL LABOR RELATIONS BOARD back to work on it if Matheny had done the work original- ly. Jose Villanueva testified that Caudill, Ellis, or anyone who was running the service desk had taken him off of one job in order to perform a small job. He explained: "Well, sometime, if I was doing some particular job, there was a customer waiting for a battery or a fan belt or something - some job that takes no more than five minutes, and he pull me from that job and order me to do that particular fast job, you know, and keep the customer no waiting too long for those small minutes." Robert Blyzka, a mechanic at Fullerton, testified that Caudill had taken him off of one job and put him on another job in order to get that job done. He gave as an example when there was an "irate customer." He said that Ellis and Negron had done so also and that even he had done this when a customer was upset with work which Blyzka had previously performed. While describing his duties, Caudill said that after he gave the work order to the mechanic and gave him the necessary parts for the job, "then I made sure that the work was completed on time." When he was asked how he did this, Caudill replied, "Well, I checked every so often to make sure the work was coming along at the rate it should be." He added, "I checked with the mechanic to make - to see what progress he was making." Caudill was then asked, still on direct examination, "Did you ask him what progress he was making?" Caudill responded, "usually." 10 However, on cross-examination Caudill said that he just watched the mechanic. Caudill testified: Q. You say you spent a substantial amount of time in the service area to insure that work was completed when there were no customers at the service desk? A. Yes, sir. Q. What did you do to see that the work was com- pleted? A. I observed the mechanics as they were doing the work. I watched the progress of the work. Q. Well, how does that get the work completed? A. It doesn't. Q. You said here you were doing this. I am asking you what you meant when you said that you did this to insure that the work was completed. A. You just said merely looking at the mechanic didn't get the work completed. I gave him the parts that he needed. Q. What else? A. That's all I gave him. Q. That's what you meant when you said in your affidavit that you spent a substantial amount of time in the service area? That's all you were doing? Just getting him an occa- sional part? '0 As noted earlier, Negron estimated that Caudill spent about 20 per- cent of his worktime in talking with people in the shop and that one purpose was to find out the progress on thejobs they were working on. Dale Matheny,. a mechanic for about 6 years at Fullerton, testified with regard to Caudill: "He would give you a ticket and tell you that it had to be out at a certain time." Matheny also said that Caudill ' would come around and check on you," but he didnot remember that Caudill ever talked with him about whether he was going to make it on time. A. Yes, sir, not an occasional part, but lots of parts. Caudill initially denied on cross-examination that he would say anything to an employee who did not appear to be working as fast as he should. However, after being con- fronted with an inconsistent statement in a pretrial affida- vit, Caudill acknowledged that the statement set forth in his affidavit was true. Caudill testified on cross-examina- tion: Q. Did you ever see a man who did not appear to be working as fast as he should? A. Yes, sir, I have. Q. What would you do on that occasion? A. Would inform John Ellis. Q. Would you speak to the employee at all? A. No, sir. Q. You wouldn't say anything about that he ought to speed up or anything? A. No, sir, I would not. Q. You would never speak to the employee? A. Not in that manner, no, sir. Q. What would you tell him, that he ought to speed up? A. No, sir, I gave the information to John Ellis. Q. I am looking here at an affadivit that you sub- mitted to the National Labor Relations Board on the 22nd day of August. Reading from page 3, I1 notice the statement: As far as disciplining employees was con- cerned, if I saw someone working too slow, I would tell the person to speed up, and sometimes I brought problems to the attention of John Ellis. But it was completely up to him to handle the situation. Now was this statement true, you gave it to the La- bor Board? A. Yes, it was. Q. So the truth of the matter is, when you saw a man working too slow, you would speak to that person to speed up? A. No, sir. I never demanded that no one speed up. Q. Well, let me point this out to you on page 3 of your affidavit. You may read it to yourself, beginning "As far as discipline." A. I have read it. Q. And you do recall making that statement to the Labor Board? A. Yes, I do. Bruce Wayne Snow, a mechanic at the Fullerton auto service center. acknowledged that Caudill had come to him while Snow was working and asked him how long it was going to take Snow to finish the job. He also stated that Caudill had asked if Snow could have a job completed by a certain time which was earlier than it had been promised to the customer. 22 MONTGOMERY WARD & CO. Q. "As far as disciplining employees was con- cerned, if I saw someone working too slow, I would tell the person to speed up"? A. That's correct, sir. Q. Is that statement on the affidavit true or false? A. It's true. Q. So the truth of the matter is when you saw someone working too slow, you would tell them to speed up? A. I would ask them to speed up, not in a demand- ing tone. Q. You used the word "tell" here. You would tell them to speed up, didn't you? A. Yes, I did. Q. Now, are you saying that you did not tell them to speed up? A. No, sir. I am saying I did tell them, but not in a demanding way. Caudill subsequently testified that he had only told one person to speed up with his work, but he conceded that he did not so indicate in his pretrial affidavit.'I With regard to calling additional employees into the auto service center when the workload was heavy, Caudill said that he had done so and anyone else did so who was oper- ating the service desk, including employee Ralph Negron. Caudill explained that, when Ellis was not there, Caudill would call in employees to work "if I thought I needed them" but only after getting approval from Ziegler. He said that Ziegler only once refused Caudill's desire to call in additional employees. 12 Caudill said he had commented on the work habits or the production of only one employee to Service Manager Ellis. Caudill said that he told Ellis that James was a little slow and should work a little faster, but that Ellis said nothing. Caudill testified that Ellis never asked his opinion about the job performance of any employee or talked with Cau- dill about any employee job evaluations. Caudill himself did not evaluate any employees. Caudill also stated that he did not hire, fire, reprimand, warn, grant pay raises, promote, or transfer any employees, or recommend such actions. He also said that he did not authorize overtime work. He said that he did not attend any management meetings. With regard to applicants for employment by Respon- dent, Caudill said that he either gave them an application form or received an application form from the applicant and advised the person to return later to talk with Ellis. At first, Caudill denied that he had asked applicants about their experience, but when confronted with an inconsistent statement in his pretrial affidavit acknowledged having done so. Caudill stated that he had "no particular reason" for asking applicants about their work experience and did nothing with the information. " Ralph Negron, who worked as a battery man at the time and who assisted Caudill or Ellis at the service desk in the absence of one of the two men, gave a different version. He said that he overheard Caudill telling tire busters "to move a little faster." He also acknowledged the truthfulness of his pretrial affidavit wherein Negron stated: "I have no knowledge [that] John Caudill could hire or fire; he could tell employees to speed up their work. John Ellis has told me I could also if I was on the service desk. He or Caudill would back me up even including telling someone to clock out." Ralph Negron, who was primarily a battery man during the time that Caudill was assistant service manager, also worked on the service desk during that period of time. Negron assisted either Ellis or Caudill at the service desk when one of those two persons was off from work. Ellis and Caudill had 2 days off each week. However, both Ellis and Negron were off from work on Sundays. Negron said that when either Ellis or Caudill called him to assist one of them, it was usually in the morning hours when the cus- tomers usually brought their vehicles in for work. Negron estimated that he averaged spending 2 or 3 hours at the service desk on those occasions and then he returned to his regular work for the rest of the time. One time Negron worked on the service desk during Ellis' 2-week vacation. It was during that 2-week period of working on the service desk that Negron worked alone at the desk when Caudill had days off. Negron said that be- fore Ellis left on his vacation, Ellis told Negron: You and John Caudill are going to run the service desk. I want you to keep an eye on things. Make sure things run smoothly. * * He told me that he wanted to make sure things ran smoothly. If any problems were to come up, that I should han- dle them or send them upstairs. If employees gave me a bad time, I was to pull their timecard and send it upstairs. They would take care of the disciplinary actions. nn l He said if I had problems with personnel, to pull their timecard and send it upstairs. I wasn't to get in- volved with disciplinary actions, but if I did have a problem and I thought it demanded action, I could send a person home, just clock him out and send him home and he said he would stand 100 percent behind me on whatever I did. Negron testified that he did not like to work on the ser- vice desk because of the pressures involved in the job which was bad for his ulcer and, in addition, Negron said he did not earn any commission while he worked at the service desk. Negron was employed by Respondent at Ful- lerton for about 3 years until he voluntarily quit on March 22, 1976. William Neal, who worked for Respondent at Fullerton primarily on Saturdays, but sometimes during vacations or holidays, also worked at times in past years on the service desk. Neal testified that he worked at the service desk when he first started working for the company in 1966 and again a few years later. However, when he worked at the service desk it was on Sundays or during the evenings. During that 12 Willa Bowland, who had been the detail clerk in the auto service center at Fullerton since 1968, said that she took her orders from Caudill when Ellis was not on duty. She testified that Caudill gave her orders to call for the repair of machinery and also orders to call employees in to work on their days off or to come in early to work. She said that Ralph Negron did not do so when Negron worked on the service desk. 23 DECISIONS OF NATIONAL LABOR RELATIONS BOARD period there were usually tires and batteries to be serviced and installed. Neal said that he wrote up the work orders and did the work himself or had one of the tire busters do the work if they were not busy. Richard James, who worked as a mechanic's helper at Fullerton, testified that while Ralph Negron was on vaca- tion he came to work at 7 a.m. for a couple of days and wrote work orders for customers. He did not know the prices to estimate, so Supervisor Breeze gave him the price estimates to fill in on the forms. James said that several times he wrote work orders at the service desk while the others were at lunch. His practice was to leave the work orders on the service desk for the mechanics to pick up, but he said that he also passed out some work orders if a me- chanic needed work. John Ellis was service manager of the auto service center at Respondent's facility in Fullerton from March 1974 to May 20, 1976. He left Ward's employment on May 20 and was working at a Ford dealership at the time of the hear- ing. His salary at Ward's in July 1975 was $220 a week plus 1 percent of the profits made in the shop. He was not paid for any overtime hours worked. Ellis estimated that he worked with John Caudill for about I year and 6 or 8 months. He summarized Caudill's duties as being basically the same as his and said, "When I wasn't there, he was in full charge of the auto center." Specifically, Ellis testified that Caudill had the authority to ask mechanics to work overtime even while Ellis was pre- sent at the facility and that Caudill had done so a number of times. He also said that it was common practice for Caudill to take a mechanic off of one job and put him on another in order to meet a deadline. Ellis stated that one Sunday in 1975 Ellis sent home a tire installer, Bob McDougal, because he was not performing his work prop- erly. The following day the matter was discussed among McDougal, Caudill, and Ellis. Ellis said: "I also told Bob that when John is there he's in charge and he does what he sees fit at the time, make any corrections that has to be made." Ellis related another specific incident in late 1974 or ear- ly 1975 when Caudill spoke to another tire installer, Dale Snodgrass, for taking too long on his break. Ellis testified: "The following day that I came in, Dale Snodgrass dis- cussed it with me and told me that John had jumped all over him for something - which I didn't know what then - and he said he didn't appreciate it. I informed Dale then that whatever he had done, at the time John felt that he needed some type of talking to and that he had the authori- ty to do it, that when I wasn't there he had the authority to fire him or whatever he wanted to do or felt necessary to do." The matter was then discussed among those three persons. Just prior to the time that Ellis took his vacation, Ellis said he had the following discussion with Caudill in Zie- gler's presence: Before I went on vacation, I told John - John, Mr. Ziegler and myself had a meeting - that I was going on vacation and we anticipated possibly more trouble from Jose, because we had had trouble before, just within a couple of weeks. And I told John that if he had any trouble, that he had the full authority to fire him right on the spot. According to Ellis, Caudill responded: "Yes, I'll handle it." Ellis further testified that Caudill interviewed applicants for employment "and if he didn't feel he was qualified for the job, why he would just tell them that he doesn't have an opening or he doesn't have anything right at the present to fit their qualifications." If the applicant appeared to be qualified, then Caudill discussed him with Ellis. Ellis gave as an example, Robert Blyzka, whom Caudill had inter- viewed and recommended for hire prior to the time that Ellis interviewed him. Prior to rehiring Dunlap, Ellis asked Caudill if he should hire Dunlap back to work. Ellis said: "And John thought that it would be wise, that he was a high producer, that he could get the work out when it had to be gotten out, and that he was fast and thorough." Ellis said, however, that he also asked the mechanics about Dunlap "just to find out if they had any reason why they didn't want to work with him anymore." While Caudill did not prepare appraisals on employees, Ellis said that he did discuss certain appraisals which Ellis was completing with Caudill. Ellis said Caudill trained tire busters, battery men, and mechanic's helpers, and he asked Caudill's opinion regarding their performance. Ellis also recounted two specific occasions where Caudill had recommended that an employee be discharged. In one instance Caudill recommended in early 1975 that Dick James be terminated because Caudill felt that James had not done as thorough a job on a couple of cars as some of the other mechanics would have done. Ellis, however, dis- agreed with the recommendation and James was not dis- charged at that time. The other occasion involved a tire installer who was going to be terminated anyway, but the tire installer left work early. Caudill recommended to Ziegler that the tire installer be fired right then, but the question became moot as the tire installer never returned to work. With respect to issuing cash refunds to customers, Ellis testified that Caudill did so without checking with Ellis. He also testified that when Caudill initialed the timecards of employees, no further approval was required. Ellis said that Caudill performed all the duties in his job description ex- cept for preparing weekly payroll schedules and auto ser- vice income reports which Ms. Bowland prepared. The job description for Caudill's position reads as follows: Date 7/30/68 Job Title: Assistant Auto Service Manager Code: Reports to: Auto Service Manager Grade: 6 Purpose of Job: Assists in the supervision of mechanics, mechanic helpers installers, gas island attendants, and parts men. Major Duties: Schedules and prepares work orders for repair and service of automobiles, installation of re- placement parts, seat covers, batteries, tires, and acces- sories. Estimates cost of repair and service based on diagnosis of problems. 24 MONTGOMERY WARD & CO. Assists in the repair and overhaul of automobiles. Op- erates mechanical and electrical testing equipment to isolate malfunctions, operates hand and power tools to disassemble units, install replacement parts, and test for accuracy of repairs. In the absence of manager, investigates and adjusts minor customer complaints in a manner which will re- tain customer good-will. Related Duties: Assists in the training of new employ- ees and in the preparation of weekly payroll schedules and auto service income reports. 2. The layoff of Dunlap, Neal, James, and Blyzka The parties stipulated that Respondent laid off employ- ees or reduced their working hours at the Fullerton auto service center on the basis of the employees' seniority with- in their job classification. Lyle Dunlap first began working for Wards in 1965 in Waukegan, Illinois. After working there for about 3-1/2 years, he transferred to the Fullerton, California, location where he worked for about 4 years. Then he transferred back to Waukegan for another year; then back once again to Fullerton. He left the Company and worked for another employer in Virginia until January 2, 1975, when he re- turned to work for Respondent at its Fullerton location as a mechanic. He worked continuously at the Fullerton auto service center until he was laid off on November 14, 1975. At the time of his layoff he was earning $4.50 an hour plus incentive pay. He estimated that his incentive pay ranged from $20 to $50 a week. He signed a union authorization card and attended a couple of meetings. According to Cau- dill, Dunlap attended the R case hearing on August 6, 1975, and sat on the union side of the room. Dunlap ac- knowledged that at the time of his layoff that among the mechanics at Fullerton, "everybody had more seniority than I did." He was advised of his layoff by Store Manager Presson with Personnel Manager Wilson present. According to Dunlap, he was told by Presson that work was slow and that they were going to lay some people off. Dunlap pro- tested that he could not see that the work was getting slow.'3 He said that Presson did mention his seniority and the fact that he had been there since January 2, 1975, and he was on the list. Dunlap said that Presson told him, "He said if it picks up, I would be one of the first to be called back because of my qualifications." Dunlap placed the conversation as taking place about 3:30 in the afternoon. He had a brief second conversation after he had gotten his slip with the word "termination" on it. He confronted Pres- son and Wilson with it and they explained that it was merely terminology used for a layoff. Dunlap said that James was present at the second conversation. By letter dated February 26, 1976, Respondent offered immediate reemployment to Dunlap as a mechanic. He declined by letter, which was written by his wife at his instructions, and dated February 29, 1976. It stated: 13 At the hearing Dunlap testified that there were quite a few front-end alignments to be done, which was the work he was performing, as well as other work. "Thank you for your consideration. I already have a posi- tion. I'm out of State, and do not want to return." Dunlap said he was at a nearby bar known as 2 J's from a little after 5 p.m. until midnight after the layoff. He said that James also remained during that time, but that Neal left between 7:30 and 8 p.m. and that Ellis was there until around 8 p.m. According to Dunlap, the layoff was being discussed and he said that he did not figure that they were that slow that mechanics had to be laid off. He said that he told Ellis that in the past layoffs tire busters and battery men were the only people that he had ever seen laid off. According to Dunlap, Ell's responded that he had not seen it either and that Ellis could not figure out why the Compa- ny had laid them off at that time because the shop was running in the black. The discussion then turned to Cau- dill's discharge and Dunlap testified that he suggested to Ellis that Ellis call Caudill. Dunlap said that he gave Cau- dill's telephone number to Ellis and walked with Ellis to the telephone booth where he saw Ellis dial the number and heard Ellis say, "Hello, John." William Neal was a part-time employee who worked as a mechanic primarily on Saturdays at Respondent's Fuller- ton auto service center. Neal began work for Respondent in 1966 and continued to work there until his layoff from work on November 15, 1975. In addition to his Saturday work, Neal sometimes worked for employees during their vacation periods and sometimes worked on holidays. He was paid $4.75 an hour plus incentive pay. Neal signed a union authorization card and attended the Board hearing on the representation petition at Fullerton. He said that he sat with the union business agent at the hearing along with Caudill, Bruce Snow, and an employee named Mitch. He said that Store Operating Manager Zie- gler and Auto Service Manager Ellis sat on the other side. A couple of weeks before the Board-conducted election at the Fullerton facility, Neal said that he had a conversa- tion with Ellis regarding the Union. They were discussing work when Neal asked Ellis what he thought of the Union coming into the shop. Ellis responded, "I hope the employ- ees know what they are getting into." Then Neal expressed a somewhat ambivalent position. He told Ellis that if the full-time employees in the shop wanted a union, Neal would vote "yes," and if the full-time employees in the shop did not want a union, Neal would vote "no." Neal explained that the matter concerned the full-time employ- ees more than it did him. Neal characterized the auto service center as being "su- per busy" on November 15, 1975, when the layoff occurred at Fullerton. He said that he and several other employees were taking a delayed coffeebreak about 4:30 that after- noon prior to leaving work at 5 p.m. Store Manager Pres- son approached and asked to see Dunlap, James, and Neal in his office in 10-minute intervals. After Dunlap and Neal had left the office, Neal went into Presson's office where Presson and a personnel man named Wilson were present. Presson explained that he had to let Neal go; that they had been very satisfied with his work, but that this was "a district move." Presson said that Neal had been around and had seen cutbacks like this before, but Neal replied 25 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he had not seen a cutback like this. Neal asked if the work picked up, would he be called back. Presson said he would do so. At the hearing Neal said, "I was stunned." He saw Ellis in the shop in the auto service center and asked Ellis if he had known anything about the layoff. Ellis told him that he did not know about it and in Neal's view appeared to be upset. Ellis, Dunlap, James, and Neal had a conversation in a nearby bar which is known as 2 J's. Negron joined them later. 4 According to Neal, Ellis told them that there was no way that they could run the shop and that he would have to shut the shop down because of the cut in the crew. Ellis said that he was upset because of the reduction and that he did not know anything about it. Ellis said that the shop was making a profit and that it had taken a long time to get the crew together, to harmonize, and to get the work out. The employees started talking about obtaining other jobs, and Ellis told them not to do anything because he was going to Presson's office on Monday and find out about this thing. Neal said that he then asked Ellis, "Do you think this is a union move?", and that Ellis replied, "It has to be." 15 Also during the course of the conversation, Neal suggest- ed to Ellis that Ellis call Caudill because Caudill had made some connections with the Board with regard to his own termination. Ellis agreed to call Caudill.'6 Neal testified that a few days after the layoff he tele- phoned Ellis, and that Ellis told him that he had talked with Presson and that all he could find out was that it was a "district move." Neal said that he had still another conver- sation with Ellis which took place on December 6, 1975, at the shop. Neal asked Ellis if he could put him back to work and Ellis said, "No, business hasn't picked up yet." Neal testified that he had not been called back to work by Re- spondent at the time of the hearing in June 1976. Richard James worked as a mechanic's helper for about 1-1/2 years. At the time of the hearing in June 1976, he was earning $3.35 an hour plus incentive pay. During 1975 his hourly rate was $3.30. He signed a union card and he was the employee who originally gave the Union's telephone number to Caudill. 14 Negron testified that he amved about 7 p.m. and left about 8 p.m. Negron described Ellis as being angry about not being told of the layoff prior to its occurrence; that Ellis was going to go "upstairs" on Monday; and that Ellis did not know how the work could get done. 15 Ellis testified to an entirely different version of the conversation with the laid-off employees at the 2 J's bar. He stated that the reasons for the layoff were discussed. He testified: They asked me why and I told them that it's just that time of year and I've got to cut back payroll, that the income isn't there. They asked me if they was laid off because of the union, you know, and I said, "No. It doesn't have anything to do with the union; it's just that time of year." '6 Ellis said that Neal and Dunlap wanted him to call Caudill and ex- plain to Caudill why they were laid off. So, Ellis said he telephoned Caudill that evening. Ellis testified: When he was laid off on November 15, 1975, he was told by Store Manager Presson that it was because of "lack of work." James said that he did not question the reason given at that time because he did not like to argue and because of his temper. He said that he and Dunlap did question why the word "termination" was on their notices and it was explained to them that the phrase included a layoff from work. At the time of the layoff, James was working 32 hours a week, but he said that his incentive pay was $50 a week at the time rather than the usual $10 or $20 a week. He de- scribed the work in the shop as being pretty busy. Two weeks later Respondent recalled James to work and he has continued to work for Respondent. James said that the work was good upon his return and continued to be so until prior to the hearing in June 1976. However, he ac- knowledged the truth of the following statement in a pretri- al affidavit which James gave on December 11, 1975: "The first week I was back to work seemed pretty steady. I be- lieve I worked an hour overtime. This week work is a little slow. Work is normally slow at this time of year." James went to the 2 Js bar after his layoff. He said that he stayed there until 2 a.m. When asked about the conver- sation among the employees and Ellis regarding the layoff, James testified candidly, "Well, we did, but I got liberated. So I don't remember too much about it." When asked what he meant by "liberated" he said he meant "drunk." Dale Matheny testified that he asked Ellis what was go- ing on after the layoffs had taken place. He said that Ellis told him that he did not know how he could possibly run the shop with as few employees as were left.'7 Matheny gave his opinion that business was good during the week that the layoffs had taken place. However, Matheny said that the Company had also cut back the number of hours that some of the tire busters were working. After the layoff, he, Ellis, and Renaldo would take in only the amount of work which could be done and then not take any more work orders. His basis for that conclusion was "because I heard them discussing that they could take only all they could handle." 18 Robert Blyzka was hired as a mechanic in April 1975 by John Ellis at the Fullerton location. About 2 months later, John wanted to know why the men got laid off and I explained to him the same thing that I had explained to the other men, that if - it was lack of income coming in the shop and I couldn't keep the payroll and district had said, "Cut hours," so I cut hours and I cut according to seniority. 11 In a similar vein, Jose Villanueva testified that during the week after the layoffs at Fullerton, Ellis told him that it was "real hard for him to run the shop at that moment with just three or four people who were working there." 18 Ralph Negron described a conversation which he had with Ellis some- time prior to the Board-conducted election on September 5, 1975, at the Fullerton facility. According to Negron, Ellis told him about an inspection of the Fullerton auto service center by managers from Chicago and that the Chicago managers had recommended the hiring of additional personnel at Fullerton. However, Negron said that additional personnel were not hired thereafter, but instead, some employees were transferred to other jobs or moved up in their positions. Negron acknowledged that business was "booming" in August 1975 when the Chicago inspectors were at Fullerton. Negron also said that after the layoff there were not enough personnel to handle the business at Fullerton especially on the Friday after Thanksgiv- ing. He said that he normally worked 3 or 4 hours a week overtime prior to the layoff. but afterwards he worked 8 hours a week overtime. 26 MONTGOMERY WARD & CO. he signed a union card after talking with John Caudill about the Union. He also voted in the Board-conducted election which was held at Fullerton on September 5, 1975. About a week or 2 weeks prior to the election, Blyzka had a conversation with Ellis regarding the Union. Accord- ing to Blyzka's testimony, Ellis told him that the Union would cost him money because he would have to pay union dues and that the Union "probably wouldn't get us a wage increase because Montgomery Ward was very stiff on wages and also it might jeopardize my job and possibly his." 19 On the day following the election, Blyzka said that the following took place involving Store Manager Presson: After the elections we were sitting around the follow- ing day in the automotive shop and taking a break after all the work and clean-up had been done and the store manager, Mr. Presson, happened to be walking by and at that time he told us to - that we had five more minutes left to work and there would be no more short breaks when the time avails any more. From now on it would be strictly 15 minutes' breaks in the afternoon. Fullerton Store Manager Presson testified that employ- ees are entitled to a 15-minute break for every 4 hours that they work. He said that he had never spoken to employees about taking longer than their 15-minute breaks, but he also said that he had personally spoken to an employee who he had seen spend more than 15 minutes on break. With regard to the auto service center employees, he said that he did not recall having spoken to anyone about tak- ing more than 15-minute breaks and to his knowledge the employees there did not do so. He did not recall telling Blyzka sometime after the union election that from now on they were only to take strictly 15 minutes for their breaks. Because of a disability, Blyzka said that he was off from work soon after the election. Upon his return to work, Blyzka said that he worked for only 2 days before being laid off by the Company. 20 During those 2 days he primari- ly did alignment work. He said that the shop was busy during those 2 days and that some customers were turned away. After working in the shop for those 2 days, Ellis approached Blyzka and told him that his seniority was not above that of one of the other employees, so he was being laid off. Blyzka testified at the hearing that he was the most junior in seniority. On February 15, 1976, Respondent offered Blyzka recall to work on a 40-hour basis, but Blyzka declined because in his opinion there were "unstable working conditions." Ray Harris is the general district operating manager for the Respondent in the greater Los Angeles metropolitan area which included 17 retail stores operated by Respon- dent in Los Angeles and Orange Counties at the time of the hearing in June 1976. In his position as General District Operating Manager, Harris is responsible for preparing the budget and controlling the expenses at the stores within his jurisdiction. According to Harris, the amount of the payroll is by far the largest expense item. The budget for each retail 19 When he was questioned at the hearing as to why the foregoing con- versation was not related in his pretrial affidavit. Blyzka explained that "at the time the affidavit was taken, nothing was brought up about it." This remark is not alleged in the complaint, as amended, to be an unfair labor practice violation. store, among other things, projects the anticipated sales for that store for the particular month and also projects the figure alloted for payroll expense and other expense items which can be controlled by the Company as the need arises. By means of weekly telephone conference calls each Fri- day, Harris is in contact with the stores with regard to their respective auto service centers. Harris explained that the conference calls enable weekly action to be taken with regard to the auto service centers at each store to adjust operating expenses in line with the most recent sales trends. Harris pointed out that the year 1975 was the best year in the history of Respondent's operations in the Los Angeles area, which covers a period of time of about 14 years. He also said that the Los Angeles area stores had shown the "most dollar improvement in any district in our company" in 1975. Harris attributed this to several things, including a decline in the purchase of new automobiles in 1975 and fuel prices with the result that "the repair of existing cars was at an all-time high." This result, in turn, had led to an expansion in the budgeted payroll according to Harris. With regard to the layoff of certain employees in Novem- ber 1975 at the Fullerton auto service center, Harris said: As we do in most of our locations, in the month of November we started reviewing our budget and collec- tions for the next period and, in doing so, we found a down-trend in collections and we had to adjust our payroll in Fullerton in line with those collections. S * In case of Fullerton, when we developed again, our basic organization by activity, we had too many hours at the time in our mechanical area. There were other areas, as I remember, that we were overstaffed, such as tire mounting. But we were more overstaffed - by "overstaffed" I mean we had excessive hours in our mechanical area. Layoffs were given because we had at that time in Fullerton, we had just recently had an election in Sep- tember, I believe, and as we generally do, we would ask a store manager to manage his layoffs in line with re- duction in hours. In this case, with counsel, John Bennett, we felt that we wanted to approach this on a step-by-step basis. It was a very sensitive labor relations area, so I sat down with the store manager personally, and reviewed each activity as I just said by job category, and found that where we were heavy was in the mechanical area. So layoff was the only way we could go. Other hours were reduced and layoffs were taken in other areas also. Harris said that he was aware of the productivity of the individual employees, but he did not take that factor into consideration on the advice of John Bennett, who was no longer employed by Respondent at the time of the hearing, 20 Blyzka estimated that he was away from work because of disability for about 5 weeks and returned to work on October 9, 1975. However, the company records show that he was laid off on November 19, 1975. Thus, it appears that he returned to work from his disability on Monday, November 17, 1975, rather than October 9. 27 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but who had previously been the western regional labor relations manager for Respondent. Harris stated that he knew for a fact that employees with high productivity were laid off, but he gave this explanation: 21 Prior to taking the action at Fullerton, I talked with John Bennett and John Bennett's counsel was that the union contracts, when they are drawn, reduces, number one, by seniority, straight seniority, and that we would be - it would be Ward's position to follow that, be- cause we were in a sensitive [area] and we should ap- proach it by job category, certainly seniority on any reductions or layoffs. And after talking to John Bennett I proceeded to take that action. Fullerton Store Manager Calvin Presson stated: "Well, basically, because as I said, because of the activity, we felt that the seniority would be the way to go as far as any problems arising from this." He acknowledged that he meant union activities in using the work "activity" and that the problems which he anticipated might arise if seniority was not followed would be from "the unfair labor [prac- tice] approach." To his knowledge, no one notified the Union of the intention to make the layoffs. In determining to follow seniority in selecting employees for layoff from work, Respondent correctly anticipated what the Union's position would be. Joe Henderson, who has been a special organizer for the Union for the past 8 years, expressed the view at the hearing that qualifica- tions and ability are important, but "I consider seniority is number I in my book." He explained: "My position, ac- cording to the other contracts, the only thing that a work- ing man has going for him in this entire thing is seniority. Without that, I don't think he has got very much going for himself." While Respondent did not consult with Hender- son, or to his knowledge, contact the Union with regard to the layoffs or reduction in working hours at the Fullerton, Norwalk, or Canoga Park locations, Henderson said that he contacted Bennett after he learned of the layoff at Ful- lerton and the reduction at Norwalk. Based upon what he had been told by the Fullerton employees, Henderson pro- tested to Bennett that "you laid off out of seniority" and said that the Union should have been contacted before the Respondent took that action. In comparing the actual payroll expense at the Fullerton auto service center for November 1975 and the payroll expense which had been budgeted for December 1975, Harris realized that a reduction in payroll expense was needed in order to come within the budget. The actual amount of the payroll at Fullerton in November 1975 was $11,920 whereas the December 1975 budget figure for the payroll was $8,400. The difference between the two figures is $3,520. Harris pointed out that the December budget is traditionally less than the November budget. The Compa- ny's records show that the December 1974 payroll at Ful- lerton auto service center was $8,528 which was also a drop from the November 1974 payroll of $11,306. The budget figure of $8,400 for December 1975 was very close to the 21 In his testimony, Bennett confirmed that he had given advice to pro- ceed with the layoffs by seniority within job classification. He gave this basis for his advice: "First of all. I think most employees think it is fairer to do it December 1974 actual payroll figure, and, after the layoffs at Fullerton, the actual December 1975 payroll expense was $8,326. There is a similarity in the payroll figures for November and December 1974 and the payroll figures, both budgeted and actual payroll, in November and De- cember 1975 at Fullerton. An examination of the payroll figures from May 1975 through May 1976 with the corre- sponding monthly figures for the preceding year reveals how the payroll varies from month to month at Fullerton and also the similarity in November and December 1974 as compared with November and December 1975. In this re- gard, the records show: FL'LLERI(' AUlTO SERVICE PAYROLL 1975 May J,)ne Sept. ,ctv. Dec. 1976 Jan. Feb. Mar. Apr. Hay ACTUAL $13,873 $10,833 $11 ,593 $13 940 $10,751 $ 9 966 $11 ,920 $ 8.326 $ 8,139 $ 9,882 $ 9,644 $10,341 $12 ,680 R lDCE T 513,000 $10,400 510,400 $13,000 $10,000 $1 0,000 $11 ,500 $ 8,400 $ 8,400 513,500 $10,$00 $10,800 $15,000 YEAR BEFORE 511,871 $ 9,665 $10 ,903 $12,139 $ 9,668 $10,111 $11,306 S 8,528 $ 8,374 $11,925 $ 9,945 510,348 $13 873 Harris testified that he was not aware of the union activi- ties of any of the laid-off employees. It was stipulated that Respondent followed seniority in selecting the employees for layoff at Fullerton. Thus, this is not a situation where it is contended that certain employees were discriminatorily selected for layoff. If Respondent had not made any layoffs at Fullerton and instead had maintained its payroll at the November 1975 level, then Respondent would have suffered a loss of $2,031 in December 1975. Instead of taking a loss, Respondent had a gain of $1,308 in its net auto service income for December 1975. The fact that the records show that Re- spondent had only $204 in net auto service income in De- cember 1974 at Fullerton would forewarn Respondent that unless it reduced its payroll from the November 1975 level, it could reasonably anticipate a loss in December 1975. As Harris pointed out, if he had not made the reductions, the payroll would have exceeded the December income by over $2,000. An examination of the Company's payroll records at Fullerton from May 1975 through May 1976 show that Respondent did not suffer a loss at its auto service center in any month during that period and also the records show how Respondent has managed to keep its payroll expense under the auto service income from its customers to produce a net gain of various amounts in every month. In this regard, the company records show: that way and, secondly, you are less likely to get in trouble with, you know, the layoffs with the union if you do it by seniority, because that is normally the way they want it." 28 MONTGOMERY WARD & CO. rnLE RTON 1975 Mav June July Aug. Sept. Oct. Nov. Dec. 1976 Jan. Feb. Mar. Apr. May AUTO SERVICE $19,313 517,173 S15,717 $19,025 $14,179 $13,946 $15.974 S 9,889 $11,677 $14,584 $12 ,777 $13,878 $16,628 PAYROLL $13,.873 510,833 $11,593 $13,940 $10,751 $ 9,968 $11,920 S 8,326 $ 8,139 $ 9,882 $ 9,544 $10,341 $12,880 NET ALTO SERVICE IN CO0E $4,266 $5,562 $3,355 S3,492 $2,417 $3,167 $3,388 $1, 308 $1,922 53,873 $1,850 $2 ,644 $2,213 While there have been NLRB-conducted elections at 8 of the 17 stores operated by Respondent in the greater Los Angeles area, there have also been layoffs and reductions at other stores where no election had taken place. Harris gave, as examples, the stores at Costa Mesa, West Los Angeles, and Lynwood. In some instances the employees were not laid off from work such as the two persons at the Lynwood store in November and December 1975 who were terminated for security reasons. 22 However, as Harris pointed out, by not replacing them, the payroll expense was reduced during that period. Harris also pointed to reduc- tions at stores where elections were held and the Union had lost the elections. For example, he cited the Eagle Rock and Huntington Beach stores where the Union had lost elections, but reductions had taken place. Harris also ex- plained why there had not been reductions in working hours at the Santa Ana store even though losses had been incurred. He explained that the Santa Ana operation had lost money for the past 3 years and had undergone changes in two auto service managers in the year 1975 and "we had a new manager and we were rebuilding the organization." Fullerton Store Manager Presson testified that James was rehired shortly after the layoff because business did not drop off as rapidly as had been anticipated. The layoff was on November 15 and James was reemployed on No- vember 20, 1975. Presson stated that after he rehired James he received no complaints from customers that they could not get service in the Fullerton auto service center due to a lack of manpower. Presson said that Dunlap was subsequently offered reem- ployment and he declined, so reemployment was then of- fered to Blyzka who did not accept. Presson stated that Neal had not been offered reemploymient because Neal had worked only on Saturdays and the Company had been able to handle the customer's business without bringing in additional people. He said that the Fullerton auto service center had 14 mechanics and tire busters at the time of the hearing in June 1976. 3. The warning notices to Snow, Matheny, and Villanueva Bruce Wayne Snow had worked as a mechanic for about a year at Respondent's Fullerton auto service center. Previ- 22 Store Manager Presson testified that some tire busters had been termi- nated in 1974 at Fullerton for secunty reasons. He could not recall whether a mechanic had been also. ously, he had been employed at two of Wards auto service centers in Maryland. He had been the service manager at one of the Wards stores in Maryland. Snow said that he had discussed the Union with some employees and had handed out a few union authorization cards to other employees in May or June 1975. He also signed a union card. According to Caudill, Snow attended the R case hearing on August 6, 1975, and sat on the union side of the room. Following the Board-conducted election on September 5, 1975, at the Fullerton facility, Snow said that there were "contentions between the employees and management." He added that these contentions included: "rough voices, more strictness on schedules, and things of that nature." Snow gave the following account of an occurrence involv- ing Store Manager Presson: What was said to me in particular was everytime after the election or on the election day even, I was sitting down and taking my coffee break which we get two coffee breaks a day and right after the election Mr. Presson came by and he pointed his finger at me and he said, "Okay, you have got your damn union. Ten min- utes for your break. Get back to work," which was in a real gruff tone. I can't recall - little things that went on in the shop, just a matter of little things building up. Snow and Store Manager Presson both testified that the coffeebreaks were supposed to be 15 minutes long. How- ever, Presson denied telling anybody that if the Union came in the breaks would be reduced in any fashion. Although Snow said that he was on good terms with Ellis during this period of time, Snow stated that with regard to Ellis there were "just conversations during break and things such as we are fighting a hopeless battle. They kept postponing our contract negotiations. They held them up." He acknowledged, however, that neither Ellis nor Floyd Reynaldo, the assistant service manager who had replaced Caudill, had been harassing him. On January 22, 1976, Snow received two corrective inter- views. One was for performing work on his automobile on company premises and the other was for taking excessive amounts of time for lunch. Snow said that after reading the second corrective interview he told Ellis that "this isn't right." He stated that Ellis had previously given him per- mission a few months ago to take longer lunch periods and the practice had been all right up to this point. Snow said that he was not going to sign either one of the documents and asked to have someone else present in Ellis' office to see the documents and to verify that Snow was not signing them. At that point Snow went out into the shop and got Dale Matheny to come into Ellis' office with him. He said that Matheny remarked that he had gotten one too. Ellis said that some others had gotten corrective interviews also, whereupon he sent Reynaldo out into the shop and Rey- naldo returned with Villanueva. Snow stated that he said that "these were nothing but harassment movements to - for us voting in the union and 29 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that I wanted to have someone from management down here." He said Matheny joined in the request. Ziegler joined the group and Snow told him that he had received some corrective interviews which were not true and for which he should not have been written up. He handed the documents to Ziegler who acknowledged knowing about them and agreeing with them. Snow told Ziegler that Snow thought "they were just movements by the company to punish us for union activities for voting the union in." Snow testified that Ziegler denied this and told Snow that he was mistaken. According to Snow, Matheny got into the discussion and said that he had gotten one for putting debris on the floor and that was not true because he never put anything on the floor and they knew that. Mathe- ny then said, "I think this is nothing but punishment and harassment for us voting the union in." According to Snow, Ziegler then stated: "Well, you brought it on yourselves." 23 Next Snow testified: Well, I had showed him that one. I showed Mr. Zie- gler my corrective interview that was written up for performing work on my automobile on the store prem- ises and I told him, I said, that I don't feel it's right for me to have a corrective interview written up for this purpose. I was not on company time. I was performing emergency work and that I would not sign it. At that point I tore it up. I told him that it was not going in my personnel file. He then got mad and started chewing on me pretty good, arguing at me. At one point in the argument he told me that I had better watch out. If I made one mistake, I was going to be fired. Then I [sat] down and Dale Methany argued a while and Jose Villanueva. I don't recall exactly what they said. At the hearing Snow described the incident involving the repair of the automobile which took place about 4 weeks prior to the corrective interview. He explained that he was driving his parents' car when he heard a scraping, rubbing noise in the brakes every time that he applied them. He ascertained that the car needed front disc pads on the front brakes, so he went to the store and purchased them. He gave the following account of the incident: After I bought the disc brake pads, I came back to the automotive center and parked in the parking lot furthest away from the shop. I jacked one wheel up and pulled the tire off by one end. I got out of my tool box the tools that I thought I would need and carried them out to my automobile and proceeded to do the emer- gency work I had to do on it. I was out there approxi- mately 15 minutes. One of the tire changers came out to me and told me, he said, "Bruce, John Ellis says that for you to hurry up and get your car out of here or Security would come over here and fire you." I told [him] to go and tell John, okay, I'd hurry up. I started and was half way through and I had to finish it. About ten minutes later Mr. Ziegler came from the main building and asked me what I was doing. I told 23 In giving his testimony, Ziegler did not deny having made that state- ment. [him] that I had to stop by the shop to perform some emergency work and that I had to use my tools and he said that, well, he said, "Make it as quick as possible." I told him I would and I left the scene. I finished my work. I left with no problems and that was it. Afterwards, Snow said that he asked Ellis if he would tell Ziegler that Snow was sorry for working on the lot. Snow added that this would not happen again because Ziegler had been out there, and Snow said that he was not aware that he could not do that. According to Snow, Ellis re- sponded that Snow should not do it anymore. Snow gave examples where others had worked on cars in the parking lot. He said that he had observed Ellis perform- ing minor repairs on Ziegler's car in the parking lot. He stated that he had seen other employees perform work on their cars in the parking lot. One example which he recalled involved Dick Courier, who was assistant manager at the time of the hearing. Snow said that about 6 weeks to 2 months prior to the time that Snow worked on his parents' car in the lot, Courier had parked his automobile directly in front of the automotive shop for 3 days to do a complete front-end overhaul. Snow testified that Ellis helped Courier occasionally. According to Snow, no one said anything to Courier, nor were any corrective interviews issued. With regard to his second corrective interview, Snow testified that he had discussed the matter of taking a longer lunch hour with Ellis shortly after he started working at the Fullerton store. Snow lived only about 1-1/2 miles from the store and he liked to go home for a hot meal. He asked Ellis if that would be all right and Ellis said "yes," but not to do so when they were busy or when Snow had a custom- er waiting. Snow indicated that he followed those instruc- tions. He punched in and out on the timeclock during his lunch periods and generally took an average of 45 minutes for lunch rather than the allotted 30 minutes. However, he said that he worked a full 8-hour shift. Snow stated that he had never before received any warning notices from the Company. Dale Matheny had worked for Respondent as a mechan- ic at its Fullerton facility for about 6 years. In August 1975, Matheny was earning $5 an hour plus incentive pay, which he estimated at averaging $10 a week. He signed a union authorization card in June 1975. He testified on Caudill's behalf at an unemployment compensation hearing on Jan- uary 19, 1976. On January 22, 1976, Matheny, along with some other employees, received a "corrective interview." Matheny said that Bruce Snow came out into the shop and asked Mathe- ny to go into Ellis' office with him because Snow was re- ceiving two corrective interviews with which Snow did not agree. Matheny went into the office with Snow, Ellis, and Floyd Reynaldo present. Matheny noticed that there were several corrective interviews on the desk and noticed that his name was on one of them. He asked Ellis if he was going to receive a corrective interview. Ellis told Reynaldo to bring in Villanueva because he was also going to receive one. Matheny said that the corrective interview was for 30 MONTGOMERY WARD & CO. throwing trash on the floor, specifically "some brake boxes and shock absorbers." 24 According to Matheny, he told Ellis: "This is the biggest bunch of garbage I have ever seen. You know I don't throw trash on the floor. It was my idea to give anyone 2 days off that does .... You took it upstairs and Mr. Ziegler made [it] an order and it was posted on the bulletin board .... We want someone from the staff here. This is just too much." 25 Ziegler then joined the meeting and Matheny told him: "What kind of stuff is this? This is nothing more than harassment. This is all we have been getting since we voted in the union. You know I don't throw trash on the floor." Matheny stated that Ziegler replied that there had been an accident and that they had to stop this, whereupon Mathe- ny replied that there had never been an accident in the shop because of anything that Matheny had thrown on the floor. At that point Ellis spoke up, according to Matheny, and said that Matheny had left some water on the floor. Mathe- ny acknowledged that he had left some water on the floor after he had put some plugs in an engine, but he said that he did so because Ellis had jacked up a car behind the one that Matheny was working on, so Matheny could not clean up the water at that time. Matheny said that Ellis told him that the water "was there for a very long time." Matheny explained that he was put on another job and could not clean up the water.26 After they left the office, Matheny said that he told Ellis: "You know why they are doing this, but you can't say anything." Matheny stated that Ellis responded: "I have to take orders." Matheny testified that he had never before received a warning notice. Jose Villanueva worked for Respondent for over 6 years. During 1975 he earned $5 an hour plus incentive pay as a mechanic at the Fullerton auto service center. He signed a union authorization card and he said that he tried to con- vince others to agree with the Union. Villanueva received his first warning on January 22, 1976, when he was given a corrective interview allegedly for leaving debris on the floor of the shop. He said that he was called into the meeting with Ellis, Reynaldo, Snow, and Matheny. At Matheny's request, Operating Manager Ziegler joined the group. Villanueva then testified: And I asked Mr. Ellis and Mr. Ziegler about my interview: That how come they going to give me that correct[ive] interview and both of them knew before that I was a clean mechanic and a safety mechanic and I asked also that: What is going on with this one. Because I don't believe that they or the company took six years to find out that I was a dirty and unsafe mechanic. And they explained to me that the shop was dirty and we got some accidents, and also Mr. Ziegler told 24 At the hearing Matheny denied that he had left brake boxes and shock absorbers on the floor. 25 Ralph Negron also stated that Matheny earlier had been the first one to say something about anyone leaving a part or empty box on the floor or the counter. Negron testified: "If we had worked in his area and had not picked up, he became very angry about it." me that they have, in order to keep the shop clean, they have to start on someone and they pick me up. Evidently, I didn't sign that paper because I thought it was unfair and wasn't true. It was a lie because - I didn't sign that paper and after that I walk out from the office and I start working [on ] the car that I was working on before. However, before leaving the meeting, Villanueva said that he heard the discussion concerning Snow's working on his car in the parking lot. He said that Snow explained that it was an emergency and that he was repairing the disc brake parts on his car on his day off from work, rather than during working time. Villanueva said that he had worked on his own car on two occasions, but he parked his car in the parking lot of the Goodyear store and carried his tools from Wards to his car. Villanueva said that he had asked a Mr. Tucker, who he described as being a member of the staff at Wards store, if this was all right and had been told it was since Villanue- va was not on Wards premises. Ellis attributed the corrective interviews given to Mathe- ny and Villanueva to the suggestion made by a Wards security inspector whose first name is Mary Lou, but who was not otherwise identified. Ellis said that Mary Lou had discovered debris in the shop on the day before the correc- tive interviews were given. She had suggested that this be done. Ellis said that he had personally observed that Math- eny and Villanueva had left parts on the floor or bench and also oil, grease, or water on the floor. He acknowledged that Matheny had originally been the person with the idea of assigning each employee a certain designated area for which he would be responsible. Ellis also observed that James and Negron had left de- bris on the floor between the time of the security inspection and the time that the corrective interviews were issued. However, Ellis said that the corrective interviews were not given to either James or Negron. Ellis testified: After the big, heated discussion that we had had with Dale and Jose and Bruce, why Mr. Ziegler said he'd better hold up and we'd better talk to Mr. Bennett first and make sure that it's not violating anything that's going on with the union at the time. With regard to the corrective interview given to Snow, Ellis said that he had observed Snow working on his car and had sent an employee named Mitch to warn him to stop, which Mitch reported that Snow had agreed to do. However, Ellis said that Ziegler caught Snow and told Ellis to write the corrective interview. The other reason given by Ellis for the corrective inter- view on Snow was his taking long lunch hours. He gave conflicting testimony with regard to whether he had dis- cussed the matter previously with Snow. First, he said, "And taking excessive long lunches, which I discussed that 26 At the hearing Matheny said that the water was cleaned up on the same Saturday that he had left it on the floor. He did not recall who had cleaned it up, but he thought it was cleaned up in about 15 minutes by the person who pulled the other car. He acknowledged at the hearing that it was "very dangerous" to have water on the floor. 31 DECISIONS OF NATIONAL LABOR RELATIONS BOARD verbally with him before, you know, a number of times." However, a moment later, Ellis was again being asked about Snow taking longer than a half hour for lunch. Then, Ellis was asked: "Did you ever have any discussions with him about taking a longer one?" Ellis replied: "No, I didn't." Much later in his testimony, Ellis was asked: "How long had Snow been taking long lunch breaks before you wrote a corrective interview with Snow?" To that question, Ellis answered: "Off and on since he had been transferred out here. I was constantly warning him about it, you know, verbally. It just didn't seem to do any good." 4. The 1975 wage plan for the Los Angeles area stores On Thursday, October 2, 1975, Respondent put into ef- fect a new wage plan for all employees in Respondent's 16 retail stores in the Los Angeles area except for those em- ployees who were paid on a commission basis and except for the employees in Respondent's auto service center at the Fullerton store. The wage plan was introduced in evi- dence and it sets forth various minimum and maximum wage scales for specific job positions. There are also inter- mediate wage scales based on length of service between the minimum wage scale and maximum wage scale. District Operating Manager Harris said that the new wage plan could result in a wage increase for those employees who were working below the minimum wage scale at that point in time. The company records confirm that certain employ- ees did receive wage increases on October 2, 1975. Harris said that the previous such wage plan for the Los Angeles area had been placed into effect in November 1974, and that there had also been new wage plans in June 1974 and in 1973 in the Los Angeles stores. Surveys are conducted by the Respondent "in keeping in line with the retail com- petition." 2 7 Harris said that he was involved in working on the new wage plan in August and September 1975. Harris gave this explanation as to why Respondent's new wage plan was not put into effect on October 2, 1975, for the auto service employees at Fullerton: We had had an election sometime in September of '75, the union election of the auto service shop, and we were in bargaining arrangements or negotiations, and in referring to the labor relations counsel, we were ad- vised not to install it in the auto service [shop] in Ful- lerton, because of negotiations. The advice to which Harris referred came from John Bennett, who at that point in time was the Western Region- al Labor Relations Manager of Respondent. Bennett testi- fied: "Well, we began collective bargaining negotiations for a contract at Fullerton which continued over a period of many months." Bennett said that there was some initial delay in commencing negotiations while the Union got to- gether its contract proposals, and he could not recall when 27 Former Labor Relations Manager John Bennett explained: The Benefits and Compensation Department in Oakland has the calendar and they review the wage scales in all of the areas in which the company does business by taking surveys of competitors in the same kind of business that we are. negotiations began, "but it was within the months, I would say, that we finally met face to face and got going on it." In elaborating as to why the new wage scale was not put into effect at Fullerton, Bennett said, "Well, we were in the process of negotiating a contract and I wanted to reserve my bargaining stance on the issue of wages and bargaining from what the rates of pay were at the time of the election rather than from some higher figure." He said that initially the Union wanted the wage increases to be retroactive to the date of the certification of the Union, but Bennett suc- cessfully resisted that and "eventually the union backed away from it." As a result of the negotiations, retroactivity was fixed as the beginning of the week in which Bennett was notified of the ratification of the agreement. Bennett believed that date was sometime in February 1976. Bennett stated that a collective-bargaining agreement regarding the Fullerton auto service center had been reached with the Union, but that the contract had not been signed as of the time that he left Wards. 5. The preelection memo to Fullerton employees On Friday, August 29, 1975, Respondent distributed a three-page document to the auto service employees at the Fullerton location. The document was addressed "To All Auto Service Employees" and was from "Cal Presson, Store Manager." The General Counsel alleges in the com- plaint, as amended at the hearing, that the document con- veyed to employees that union representation would in no event result in improvements in their conditions of employ- ment. The document contains 11 separately numbered paragraphs covering various topics. In pertinent part, the document states: i. Why is the Company opposed to the Union? The Company feels that the Union has nothing to offer the employees. At present, the Company offers you a se- cure job, good benefits, and a rate of pay which com- pares favorably with pay rates in other similar opera- tions. We do not feel that the Union can honestly offer any improvements on these items, and, in fact, might destroy what we now have, by strikes, picketing, or harassment. If the Union is voted in, you will be hand- ing over your job to a group of men who earn their living by stirring up trouble between employees and management. None of us need a lot of dissention, nor can any of us afford strikes or labor disputes. 3. If the Union wins the election, will there be a raise in pay? All hourly paid employees in the Auto Service Center will be receiving higher wages, whether or not the Union wins the election. Our present wage plan calls for automatic increases in pay, based on length of service, and we will continue this policy. In addition, we will continue to conduct wage surveys to make sure In the bigger -ities, such as L.A., this is done normally once a year ard that for the City of Los Angeles that falls in the Fall period when they do that and there was a survey and an adjustment made in late 1975. 32 MONTGOMERY WARD & CO. that our rates of pay stay competitive with other busi- nesses in the same line of work. Of course, tire and battery men can earn promotions and higher wages by qualifying for mechanic helpers. Although the Union is promising higher wages if they are voted in, they are not telling you that whatever raise they might negotiate could well be less than you would receive by voting the Union down. 4. Do Unionized employees earn more than non-union employees? The Company does not believe in discrimi- nating against any employee based upon whether he is or is not a member of a Union. In either case, the Company will pay a fair wage, based upon the type of work performed, the geographical area, and the length of service with the Company. These factors are not affected by Unionism, and it has not been our experi- ence that Union employees at Wards earn more than non-union employees. In fact, there have been in- stances in which the Company has voluntarily granted wage increases over those called for by Collective Bar- gaining agreements, in order to remain competitive with other businesses and other Wards units. * * * 6. Do you Unionized employees have better benefits than non-union employees? No. Retail, mail order, and service personnel who are subject to Teamster Union contracts at Wards have identically the same benefits that you now enjoy, with the same rate of employee contribution. In terms of benefits, the dues paid by the Union members are simply a waste, since they receive no better benefits than if they worked in a non-union location. Improvements in the Company's Benefit Plans (and there have been many), have been placed in effect at the same time, and on the same terms, in Union and non-union locations. * * * I 1. Can the Union guarantee any improvements what- soever? No. The employer must agree to any changes, and the changes that are agreed upon may not benefit the employees at all. The Union can promise you "pie in the sky", but the Union knows very well that it can- not guarantee any particular change or benefit. When the Union does not make good on its promises, there is absolutely nothing the employees can do about it. Union promises and inducements are nothing more than "smoke" designed to get you to join the ranks of dues paying members. The only guaranteed benefits that will result are the benefits the Union will get from your dues money. The other headings in the same document which have not been set out above are: 2. If the Union wins the election, will all employees have to join? 5. Are Union rates in the Bay Area higher than in Los Angeles? 7. Will the Union give the employee job security? 8. If the Union were to call a strike in the Fullerton Auto Service Center, would the employees be support- ed by strikes by Teamster Locals in other locations? 9. Can striking employees be replaced? 10. What happens if the Union cannot negotiate a contract that is satisfactory to the employees? C. The Events at Eagle Rock With regard to the auto service center at Eagle Rock, the complaint alleges that Respondent did the following: (I) granted wage increases to its employees in October 1975 to induce them to refuse to support the Union; (2) threatened employees in January 1976 by Store Manager Howard Matheny at the Eagle Rock facility with cutbacks in hours, denial of promotions, and other reprisals if the employees selected the Union as their collective-bargaining represen- tative; and (3) also at another location threatened employ- ees in January 1976 by Store Manager Howard Matheny at Van de Kamp's Restaurant in the San Fernando Valley with cutbacks in hours, denial of promotions, and other reprisals if the employees selected the Union as their collec- tive-bargaining representative. The General Counsel al- leges that the foregoing conduct violated Section 8(aX)1) of the Act. The General Counsel alleges the grant of wage increases to employees at six separate facilities in October 1975 to be violative of Section 8(aXI) of the Act. The six facilities involved are Eagle Rock, Norwalk, Santa Ana, Huntington Beach, Rosemead, and Canoga Park. The pertinent facts with respect to Respondent's 1975 wage plan for its Los Angeles area stores have already been set forth with regard to the Fullerton facility, and therefore, they need not be repeated here. The issues concerning the 1975 wage plan will be discussed together in the analysis. I. The meetings at the Eagle Rock facility Bruce McKay was employed as a mechanic's helper at Respondent's auto service center in Eagle Rock at the time of the hearing. McKay began working for Respondent in April 1975 as a battery repair man and became a mechan- ic's helper about 2-1/2 months prior to the hearing in June 1976. McKay attended three or four meetings which were held by Respondent for the Eagle Rock employees prior to the Board-conducted election on January 23, 1976. He estimat- ed that one of the meetings took place about 4 or 5 weeks prior to the election in one of the manager's offices. He said that Store Manager Howard Matheny spoke and that Operating Manager Kirk was also present at the meeting. He specifically remembered that Labor Relations Manager John Bennett was not present at that particular meeting. In responding to a series of questions, McKay gave the fol- lowing description of what Matheny told the employees at that meeting: That was the first meeting. He informed us that Ful- lerton had just won the election. He didn't say when they won but they had won recently and they just were describing to us generally what the union was and what 33 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they were planning to do and what benefits they offered us. Well, he just - it was just general. By speaking, he was saying that the union was no good and that they are not going to do anything for the Fullerton store and they took bribes and they were corrupt and just general stuff along that line. * * Yes. He said that they had, I believe, it was five or six employees had quit or got laid off because they just wasn't making enough money because everyone had just got raises in all the stores and they didn't receive any of the raises and they were forced to quit or they didn't like the working conditions - I don't know which - but he wasn't really specific on why they quit. * * * Oh, yes. He said since the union came in they haven't got any increase in salary and the union is not going to do anything for all them because the union was no good. Store Manager Howard Matheny has been employed by Wards for about 15 years and has been store manager at the Eagle Rock facility since October 1972. Matheny said there were about six meetings held with auto service em- ployees at Eagle Rock by Respondent prior to the election. At least one of the meetings took place in the office at the Eagle Rock store. Matheny said that Operating Manager Kirk, Tire Department Manager Colberg, and Automotive Parts Department Manager Bacerra were present. Matheny said that during the meeting employees asked the question if they were to vote for the Union and it became a union shop, would there be cutbacks made in the mechanical crew and the installation crew in the auto service center. Matheny testified that his answer was that whether or not the Union came into the operation, it was his job and obligation to run the auto service center profitably. He told them that, if the economic conditions dictated that cut- backs in the sales force be made, belonging to the Union would not essentially provide them a shelter to prevent layoffs. Also at that meeting Matheny said that he was asked whether cutbacks had, in fact, been made at Fullerton since the Union won the election. Matheny testified: "my answer was that it was my understanding that several per- sons had left the employ of the Fullerton unit since the election, some voluntarily and others were reduced, as I understood it, because there was lack of productivity in the shop and they were not making money." Matheny said that he encouraged them to call the Fullerton store or persons whom they knew and confirm any of the cutbacks. In addition, Matheny said that another question was asked in regard to where they stood at Fullerton in terms of negotiating a new contract. Matheny testified that he an- swered: At that point I related what I knew of the situation and that was that no new contract had been resolved and no agreement had been made at that time and I indicated that it was my understanding that it was un- der negotiation and it was my opinion that there would be no benefits or advantages in the contract inasmuch as the company had had contracts nationwide and felt that they were adequate, the benefits were proper, and that by experience the company had gone through ne- gotiations previously and the Contract did not, in fact, include benefits that were not available to the balance of the employees. 2. The meeting at Van de Kamp's Restaurant in the San Fernando Valley McKay described another meeting held by Respondent for the Eagle Rock employees at Van de Kamp's Restau- rant in the San Fernando Valley. He estimated that this meeting took place about the end of December 1975 or the first of January 1976 and within 4 weeks of the election. He said Matheny, Kirk, and Bennett were present at the Van de Kamp's meeting which generally involved employees asking questions of Bennett. According to McKay, employees questioned Bennett about the Fullerton store not having a contract. He stated that Bennett responded that the Fullerton store probably would not have a contract for a while and that he did not know when they would even begin to negotiate one. McKay said that he asked Bennett why the Company was against the Union and specifically: "Is the company against the union because they are going to pay us more money?" At that point Matheny spoke up and said "that the union was no damn good and if the union is voted in, there would be no promotions from within." McKay said that he questioned Matheny about this subject because McKay was anticipating a promotion. He said that Mathe- ny said: "if the union was going to come in, we would not get promotions because the salary to a person - they would get it from the outside." McKay further testified that Matheny "said if the union was to be voted in, hours would be cut and there would be no promotions." Another subject discussed at the meeting was what would happen if the employees joined the Union and there was a strike. McKay said that employees raised the ques- tion to Bennett of "losing our jobs if we had to go out on strike." McKay testified that Bennett answered that "if we were to go out on strike, the company had the right to hire new employees in our place." Bennett added that "there was a store up north that had been on strike for four years." With regard to the Van de Kamp's meeting, Matheny denied in his testimony that he said that in the event the union won the election that hours would be cut and there would be no promotions. He also denied that he said that at any other meeting. Matheny testified that in response to employees' ques- tions at the Van de Kamp's meeting, he reiterated that the operation had to be profitable and that whether or not it was a union shop, Matheny still had to exercise his prerog- ative to cut payrolls in line with business trends. With re- 34 MONTGOMERY WARD & CO. gard to the question of promotions of tire busters to me- chanics, Matheny testified: I indicated at that time that if there were a requirement placed upon us that we pay a very large fixed hourly rate base pay for mechanical work, then it would be incumbent upon me, when we had openings in the me- chanical ranks, to hire men who had the qualifications to do the work that would be required. I did say that we would not be able to take men who did not have a great deal of experience, as we were doing at the time, and permitting them to learn on the job working with a skilled mechanic. I did indicate that we would not be able to place these men into jobs as mechanics or ap- prentice mechanics until they had the knowledge and earned the licenses that would qualify them to do the job as required, the skills required. John Bennett, who was present at the Van de Kamp's meeting in the valley, testified that Matheny told the em- ployees that "if the union did succeed in saddling his oper- ations with high rates of pay and inflexible job classifica- tions, that they would find it harder to work into a mechan- ic's position." Bennett said that Matheny told them that if the rates were high, he could not afford to train a person entering the business and he "would go out and hire jour- neymen from the outside." With regard to the subject of layoffs, Bennett said that Matheny told the employees that the success or failure of the business depended on how well the auto service center served the public and "that union or no union we had to please the public." He said that Matheny also stated "that the union could not protect them from layoffs if the busi- ness wasn't there." D. The Events at Norwalk With regard to the auto service center at Norwalk, the complaint alleges that Respondent did the following: (1) cut back the work hours of Terry Schweizer, Buddy Cliff, Allan Kemp, and Stephen McAffee on or about January 16, 1976, because the employees at the Norwalk facility selected the Union as their collective-bargaining represen- tative in the election held on January 9, 1976; (2) granted wage increases to employees in October 1975 at its Nor- walk facility to induce them to refuse to support the Union; (3) interrogated employees concerning their own and other employees' union membership, sympathies, and activities by Auto Service Manager Elgie in December 1975 at its Norwalk facility: (4) threatened employees with denial of promotions and other reprisals if they selected the Union as their collective-bargaining representative by Auto Service Manager Elgie in December 1975 at its Norwalk facility; (5) threatened employees with layoffs and other reprisals if they selected the Union as their collective-bar- zs Cliff twice made reference to being "lied to by Wards." That concerns his reemployment by Respondent in 1970 at Santa Ana when he said that he had been promised that he would have "continuing service," and also appar- ently to his being promised at Norwalk to be paid at the rate of $4.80 an hour, but then being cut back to $4.75 an hour 2 weeks later. The merits of these matters are not in issue in this proceeding, but they have been recount- ed since Cliff's strong feelings about what he feels to be broken promises have been weighed, among other things, in considering whether the witness is biased. gaining representative by Auto Service Manager Elgie in December 1975 at its Norwalk facility; (6) conveyed to employees that union representation would in no event result in improvements in their conditions of employment by Labor Relations Manager Bennett in December 1975 at its Norwalk facility; and (7) suspended scheduled wage increases in January 1976 to its employees at its Norwalk facility because they selected the Union as their collective- bargaining representative in the election held on January 9, 1976. The General Counsel alleges that the conduct in item (1) above was violative of Section 8(aXl) and (3) of the Act and that the conduct alleged in the remaining items listed above violated Section 8(aX I) of the Act. 1. Buddy Dale Cliff Buddy Dale Cliff worked from 1968 to 1970 at Respon- dent's Santa Ana location. He quit working there, but after about 3 months, he returned to work at the Santa Ana facility. Since 1972 Cliff has worked at Respondent's Nor- walk auto service center as a mechanic.2 8 In 1975 Cliff gave 15 or 16 employees union authorization cards to sign and said that he signed a card also. He attended the representa- tion hearing on November 3, 1975, under subpena either from the Board or the Union.9 Sometime between the election at the Fullerton facility and the hearing date involving the representation petition at Norwalk, Cliff had a conversation with Orville Elgie, auto service manager at Norwalk. According to Cliff, Elgie told him the following: "He said there had been five or six guys fired at [the] Fullerton store and the reason for it was that they had won their election and voted the union in."30 The Board-conducted election was held on January 9, 1976, involving the auto service center employees at Nor- walk. Cliff said that about 3 days prior to the election there was an evening meeting for employees held by Respondent at Apple Annie's Pizza Parlor. Elgie asked Cliff to attend. In addition to Elgie, Cliff said that John Bennett, Store Manager Charles Johnson, Operating Manager Pete Lau- ber, and Staff Member Jack Henry were present at the meeting. According to Cliff, Bennett told the employees "that even if we voted the union in, they weren't going to do anything for us, Montgomery Ward wasn't going to give us anything other than what we already had." Cliff said that Bennett told them that they had been negotiating a contract with the Fullerton store and that the Union had proposed a "ridiculous contract" which Bennett had turned down. Bennett mentioned that he had a contract which he was going to try to negotiate with the Union, so Cliff asked Bennett if they could see the contract. Bennett agreed. Cliff said that he, Schweizer, and some other employees read the proposed contract and learned that "it is exactly what we have now with the exception of lower pay rates than we have now and also vacation schedules had been 29 Cliff stated that about 2 or 3 weeks prior to the hearing, he received a raise of 40 cents an hour which made his rate $5.50 an hour. About the same time he said the Company began furnishing two uniforms a week to the employees. 30 Elgie's version is that Cliff said that Wards had made the layoff at Fullerton to spite the Union. Elgie testified that his reply was: "There is no way they'd ever do anything like that. Baloney." 35 DECISIONS OF NATIONAL LABOR RELATIONS BOARD changed." At the hearing Cliff explained that the employ- ees at Norwalk got 3 weeks' vacation after 8 years of ser- vice at that point in time, but that the contract proposal was for 3 weeks' vacation after 10 years of service. With regard to the meeting of Norwalk employees at the pizza parlor, Bennett denied that he told them that if they voted the Union in, they would not get any more than what they already had. Instead, Bennett said that he used the analogy of a buyer and seller of a house, where the buyer wants to pay a lower price and the seller wants to sell at a higher price. He said that he explained that no one could predict what the outcome of bargaining would be. Bennett stated that he heard that a rumor had spread among the Norwalk employees that a contract had been agreed to at Fullerton and the contract contained substantially higher rates of pay such as the Company had in the Bay Area. Bennett said: "I was pretty upset" because at that point the only thing that had taken place was that the Union had presented its initial proposal which Bennett described as being "pretty far out." Therefore, Bennett said that when the question came up at the meeting, he told the employees that the Union had presented "an outrageous proposal and that I had rejected it." He said that he told them that he had both the Union's proposal and his proposal in the event anyone wanted to look at them. Bennett also testi- fied: On the subject of wages at Fullerton, my response was that the scales were the same there at that time, at the time of the meeting when I was speaking, as they had been prior to the election. That there had been no change in any of the conditions since the time of the election. That wages, like other matters, were the sub- ject of bargaining and once the union won the election the company could not make unilateral changes with- out agreement with the union. That all of the condi- tions were kept in a status quo including wages. $ * I said, yes, I said that the wage scales had been fro- zen at Fullerton. About a month prior to the November 3, 1975, represen- tation hearing date at Norwalk, Store Manager Johnson advised the employees that they were going to have to have some layoffs. However, Cliff said that an employee named Jim Hutton quit work a couple of weeks later and that Johnson remarked, "that will take care of cutting of hours." 31 Nevertheless, Cliff stated that on the Wednesday following the election at the Norwalk auto service center, which was January 14, 1976, he was informed by Store Manager Johnson of a reduction in his working hours from 40 hours a week to 30 hours a week. Cliff said that Johnson told him that due to the loss of $900 that month, they were going to cut back the hours and that they were going to do so by seniority as the fair thing. Cliff protested that he did not think it was fair since one of the employees whose hours were not being cut was the brother-in-law of Elgie. Johnson said that he had not been aware of that fact and, if Johnson had known that, Johnson would have done some- thing about it. According to Cliff, Elgie's brother-in-law did not come back to work at Norwalk after that day.3 2 Instead of Schweizer's hours being reduced from 40 hours to 20 hours, as originally planned, the Company reduced Schweizer's hours to 30 hours a week. Cliff acknowledged that, out of the seven mechanics then employed at Norwalk, the four mechanics who had their hours reduced had less seniority than the three mechanics who did not. After the reductions, Cliff claimed that the Company turned down business by locking the doors at 3:30 p.m. mostly on Saturdays and only keeping a couple of doors open in the front for the sale of tires and batteries. Cliff testified that after the reduction in working hours, he spoke to Elgie and told him that the reduction was not acceptable to him; that he could not go out and get another job because of the hours worked at Wards, and that he could not live that way. According to Cliff, Elgie said, "Don't tell me your problems, go tell it to Mr. Johnson." Cliff did and Johnson referred him back to Elgie. Cliff once again spoke to Elgie. Cliff testified that Elgie once again told him, "Go tell Mr. Johnson." Cliff was then asked at the hearing: "Did Mr. Elgie say anything else to you about the cutbacks?" Cliff answered, "No." Next Cliff was asked at the hearing: "Did Mr. Elgie in talking to you about the cutbacks say anything about the union?" Cliff once again responded "no," but immediately added: Well, yes, he did. The third time I went back and said it wasn't acceptable, he made the statement in front of me and I thought it was Terry, but I found out later it was Al Kemp, that he made the statement, "You guys should have known that we were going to do something like this if you voted the union in." On cross-examination, Cliff altered the sequence of the remarks and said that Elgie made the statement concerning voting the Union in "that was the first time that - just before I went up to see Mr. Johnson the first time." 33 31 Elgie and Johnson both testified that Hutton left in December 1975. 32 Elgie and Johnson both testified that Elgie's brother-in-law, Kantom- er, quit work at that time. 33 Allan Kemp was the next witness called to testify after Cliff left the witness stand. Kemp did not readily corroborate Cliff's testimony on this point. Kemp was questioned about the reduction in his hours and then asked: "Did you receive any other explanation for cuts in hours from any other member of management or your supervisor?" Kemp replied, "No, none whatsoever." Then he was questioned more specifically as to the super- visor when he was asked: "Did Mr. Elgie ever say anything to you about the cuts in hours?" Kemp did not understand and asked, "Pardon me?" Then he was questioned even more specifically as to the supervisor and subject mat- ter when he was asked: "Did Mr. Elgie ever tell you why your hours were being cut?" Kemp answered: "No, he didn't give me a precise explanation, no." Finally, he was asked, "Did he say anything about them?" Then Kemp replied: "The only statement he referred to... he said that if the union had come in, that we knew this would happen to us . . . cutting our hours." While Kemp testified that Elgie made that statement about January 16, 1976, he acknowledged on cross-examination that there was no mention of it in the affidavit which he gave on January 30, 1976, to a Board agent. The subject matter of the reduction in hours was covered in the affidavit, but no mention of Elgie's alleged statement. In fact, in the affidavit Kemp affirma- tively stated: "Management did not say anything else about the union either in our store or any other store." His only explanation for his recital of Elgie's 36 MONTGOMERY WARD & CO. Cliff said that a week or two prior to the first of April 1976 his working hours increased from 30 hours to 32 hours a week and since April I he has worked 40 hours a week. 2. Allan Kemp Allan Kemp worked as a mechanic's helper at the Nor- walk auto service center of Respondent from April 1973 until he was discharged on April 15, 1976.34 Kemp said that he signed a union card and attended one union meet- ing prior to the election at Norwalk on January 9, 1976. Kemp said that he began working for Respondent at $2.40 an hour and 3 months later was increased to $3 an hour. Then after that he was increased to $3.10 an hour and still another 3 months later he received $3.50 an hour. Kemp said that he received still another wage increase to $4 an hour 2 or 3 weeks before the election. Also, about the same time the Company began furnishing uniforms to the employees. Kemp said that he attended a breakfast meeting at Sam- bo's Restaurant where John Bennett spoke to the employ- ees. Kemp estimated that this took place in November 1975. According to Kemp, Bennett said that if they hap- pened to get the Union in "that they would have no major effects on us that we didn't already have." Kemp also add- ed that Bennett told them that the insurance benefits would be "just about the same as they were already." Kemp said that his working hours were reduced from 40 hours to 30 hours after the election and that Johnson told him that the reason was that business appeared to be slow. Kemp related a conversation which he had with Elgie prior to the election in which Elgie told him that Kemp would be laid off from work, if the Union was voted in, because Kemp did not have a state license. Elgie said that the Union did not recognize a mechanic unless he had a license. Elgie added that another employee, John Kantom- er, would also be laid off because he did not have a license. Following the election, Kemp said, he did receive his state license in January 1976. Kemp stated that he spoke with Store Manager Johnson regarding getting his license. Kemp testified: "My exact words were I knew it wouldn't do me any good because he had frozen wages and he said, 'Yes, you are right.' " Store Manager Johnson stated that he started the conver- sation with Kemp in January 1976 after the election and the reductions in hours by asking Kemp if he had received word from the State as to whether he had qualified for his state license in brakes. According to Johnson's testimony, Kemp said that he had received the license and he was not going to bring it in until this thing was settled. Johnson said that Kemp did not define what he meant by his reference statement at the hearing. rather than in the affidavit which he gave a couple of weeks after the event, was that he spoke longer with the two hearing attorneys who appeared as counsel for the General Counsel rather than to the Board investigator. Elgie's version is that he told the employees that it was a cut back "be- cause we had too many hours, that they should have been cut back sooner." 14 There is no contention made in this proceeding that his termination by Respondent violated the Act. 35 Bennett denied that he told employees at the meeting at Sambo's that if the Union won at Norwalk. there would be no major changes and that the insurance would be about the same as it was already. Bennett stated that he to this thing and that Johnson replied, "Okay, we'll see what happens." 3. Terry Schweizer Terry Schweizer began working for Respondent at its Norwalk auto service center in June 1973 as a mechanic. He signed a union authorization card and he attended the representation petition hearing under subpena from the Union. He began working at $4 an hour and received an increase to $4.25 after 90 days. Thereafter, he said that he received pay increases on the average of about every 6 months. The last one was to $5.15 an hour which he said he received in November 1975, which was approximately 6 months after his last previous increase in pay. He stated that also in November 1975 the Company began furnishing uniforms to the employees. He described a conversation which occurred prior to the election in which Elgie asked him what he thought about unions. Schweizer replied that he would like to see the Union get in. At the breakfast meeting at Sambo's Restaurant, Schwei- zer said that somebody asked Bennett about benefits. Schweizer testified: "He said that the benefits were the same and it was a national policy; it didn't change whether it was a union or non-union store." Schweizer also said that someone asked Bennett about the stores in Oakland and that Bennett responded that the benefits were the same in union and nonunion stores there. Schweizer further said that someone asked Bennett about salaries. He said that Bennett replied that salaries in a union store were locked in by the contract, but in a nonunion store it varied according to wage surveys. He said that Bennett stated: "the non- union shop was at least equal always." 3 5 At the evening meeting at the pizza parlor, Schweizer said that Bennett repeated basically what he had previously said at Sambo's, but at the pizza parlor he was also asked about negotiations at Fullerton. Schweizer stated that Ben- nett told them that he had received the first proposal from the Union and that it had included "everything but the kitchen sink" and he had turned it down. Bennett told them that he had a counteroffer of his own which he had with him. Schweizer said that Bennett turned the counter- offer over to Buddy Cliff, Schweizer, and another person to read. Schweizer said that the salary proposal was less than what they were now earning; the medical benefits were the same; there was no dental plan; holidays would be about the same, and the vacation plan was changed to 2 weeks up through 8 years and then 3 weeks after 8 years. Schweizer related that about a month before the election Store Manager Johnson held a meeting with the employees and explained that two or three employees were being sent told the employees at that meeting and at other meetings "that if you com- pared what we had in the Teamsters' contract with what the employees already had, they would find out that they were identical. But. I never at anytime said there wouldn't be any improvement or that we wouldn't bar- gain on the subject or anything like that." At the Sambo's meeting. Bennett testified that he did tell the employees that the Company had "a company-wide, benefit package." He also stated that he told the employees that he had proposed at Fullerton a wage propos- al which was less than what the employees at Norwalk were receiving at that time. 37 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the main store to assemble bicycles in order to avoid layoffs. He also recalled that it was announced Jim Hutton was leaving the store to go to Oklahoma. On the Tuesday following the election, Schweizer said that he was advised that due to a decrease in "collections" the pay load had to be reduced. Since he was the lowest man in seniority, he was going to be reduced from 40 hours to 20 hours a week and his wages cut from $5.15 an hour to $4 an hour. However, that did not take place because the next day, Schweizer was informed that John Kantomer had been released from employment and that Schweizer's hours would be reduced only to 30 hours and his salary would stay the same. Thereafter, he was offered overtime work and accepted it on two occasions and turned it down on one occasion. By the first of April or mid-April, his hours were restored to 40 hours a week. 4. Stephen McAffee Stephen McAffee began working for Respondent at the Norwalk auto service center in September 1970. He said that his job classification was that of a tire buster until about a month before the hearing when he became an electrical technician. However, during the period from March 1975 until the week of the election on January 9, 1976, he wore the uniform with "Assistant Service Manag- er" on it and was "in charge" from 4:30 p.m. to 9:30 p.m. on weekdays and from 10 a.m. to 6 p.m. on Sundays. Elgie told McAffee that he was to run the service desk as Elgie would do and if he had problems with anybody, McAffee was to send them home. McAffee did send an employee home on one occasion. The employee was not discharged, however, but was changed to another shift. During the period of time that McAffee worked on the service desk, he gave out work assignments to employees; called in employ- ees to work when he felt it was necessary; ordered parts; interviewed applicants for employment and was asked his opinion of the applicants by Elgie; had employees work later than their schedule and earn compensatory time; was asked by Elgie concerning his opinion of the performance of new employees during their 90-day probationary period, and in one instance an employee was laid off from work after McAffee told Elgie that the employee was slow and was not automotive minded. McAffee's work on the service desk began to taper off 2 or 3 weeks before the election, so that he was limited to being on the service desk just on Sundays. Finally, the week of the election, he worked his last Sunday on the service desk. McAffee did not sign a union authorization card nor take part in any union activity. Prior to the election he received a raise of 40 cents an hour. He also said that the Company began furnishing uniforms to employees about that same time. On January 16, 1976, his working hours were reduced from the range of 30 to 38 hours, which he had been work- ing at that point in time, to 30 hours. He said that he was told that profits were down and that the Company was reducing hours according to seniority to avoid a layoff. 3 When confronted with this version, Elgie said: "No, not that I ever remember.' McAffee was on disability for 4 or 5 weeks in March 1976 and began working 40 hours a week when he returned to work. He acknowledged that once during the period he was reduced to 30 hours; he was offered more hours but de- clined to work them. McAffee attended the meeting at Sambo's where he said that Bennett told the employees that the Company's bene- fits did not differ between stores which were union and those that were not union. He said that Bennett told them that the Company had a national program and that "they don't change benefits just for one store if it goes union." He described a conversation which he had with Elgie sometime in November 1975 concerning the Fullerton store. According to McAffee, Elgie asked him if he had heard about the Fullerton store. Elgie said that they had voted the Union in and that everybody but one mechanic and one tire buster had been laid off.36 Elgie said that the Union did not do the Fullerton store any good because the employees lost their jobs.3 7 Another conversation with Elgie took place sometime between Christmas 1975 and the first of the year 1976. McAffee related that he had been asking Elgie about his moving into a mechanic's position and that Elgie said that if the Union won the election, the mechanics were going to be laid off anyway. 5. The Company's records concerning Norwalk With regard to the reduction in working hours of certain employees at the Norwalk auto service center in January 1976, District Operating Manager Harris gave the follow- ing explanation: We had a weekly trend. Our sales were off over $1000 a week during the month of January, prior to the election, and the only reason that we didn't take action or I didn't force stronger action in Norwalk was the fact that we had an election due, and we were advised again by counselor John Bennett that we should be status quo with whatever was in our operation until the election. An examination of the company records for the Norwalk auto service center reveals that the auto service income, the payroll expense, and the net auto service income all de- clined simultaneously in the months of November 1975, December 1975, and January 1976. The records show that as the income fell in each of those 3 months so did the payroll expense and net auto service income fall corres- pondingly in each of those 3 months. The situation turned around in February 1976 and the auto service income fig- ures increased at Norwalk in the succeeding months through May 1976. The company records show: NOrWALK Alrro SERVIC 1975 INCOME Nov. $18,796 Dec. $11,405 NET AUTO SERVI C PAYROLL IN COE. $12,740 $3,122 $ 9,132 $2,205 37 When confronted with the latter statement, Elgie responded: "No. I never said anything like that, that I remember." 38 MONTGOMERY WARD & CO. 1976 Jan. Feb. Mar. Apr. May $10,937 $1 3,950 $14,022 $15,246 $19,548 $ 8,984 $10,335 $ 8,335 $ 9,514 $11,773 $1 ,710 $2,750 $4,110 $1,928 $4,622 Significantly, if the payroll expense at Norwalk had re- mained at the December 1975 level of $11,405 during the month of January 1976, then Respondent would have suf- fered a loss of $468 in January 1976. Instead, after making the reductions in the payroll expense in January 1976, Re- spondent had a net gain in auto service income of $1,710 for January 1976. Store Manager Charles Johnson said that the reductions were not carried out in December because a mechanic named Jim Hooten transferred from the Norwalk store back to Oklahoma that month and also: "We had the elec- tion coming up and I didn't think that it would be to Wards advantage for me to reduce the payroll." Johnson said that the reason for the reduction in hours, rather than a layoff was to try to keep the mechanics at Wards. He explained that if a mechanic were laid off, he would probably seek another job, but by making the reduc- tions in hours, he hoped to hold onto the mechanics. John- son pointed out that the reductions were made by seniority. He said that he told the employees that the reductions were being made because income was down and that he thought that it was just temporary. E. The Events at Canoga Park With regard to the auto service center at Canoga Park, the complaint alleges that Respondent did the following: (1) cut back the work hours of Thomas Sigafoose, Eliza- beth K. Duey, and other employees at the Canoga Park facility about the end of March 1976 because the employ- ees at the Canoga Park facility selected the Union as their collective-bargaining representative in the election held on March 23, 1976; (2) laid off Ronald Coe and other employ- ees at its Canoga Park facility about the end of March 1976 because the employees at the Canoga Park facility selected the Union as their collective-bargaining representative in the election held on March 23, 1976; (3) granted wage increases to employees at its Canoga Park facility in Octo- ber 1975 to induce them to refuse to support the Union; (4) conveyed to employees that union representation would in no event result in improvements in their conditions of em- ployment by Labor Relations Manager Bennett on or about March 20, 1976, at the Canoga Park facility; (5) granted wage increases to employees at the Canoga Park facility from January 1976 through March 1976 to induce 38 Michael S. Hensey, a mechanic, stated that Bennett told them at the breakfast meeting with regard to the benefits: "And he said they wouldn't change and they would take a strike on this." Curtis F. Wilhoyt, a mechanic at Canoga Park, testified that Bennett told the employees at the breakfast meeting that Wards had the insurance in all of their stores. He testified that Bennett said: "We will not change our them not to support the Union; (6) advised employees that the employees at Respondent's Eagle Rock facility would be terminated because they had supported the Union by Auto Service Manager Feola in January 1976 at the Cano- ga Park facility; (7) interrogated employees concerning their union activities by Feola in January 1976 at the Cano- ga Park facility; (8) misrepresented to employees that a union business agent had engaged in misconduct at the union election on January 23, 1976, at Respondent's Eagle Rock facility by Feola in January 1976 at the Canoga Park facility; (9) interrogated employees concerning their pro- spective votes in the union election by Feola on or about March 23, 1976, at the Canoga Park facility; (10) interro- gated employees concerning their own and other employ- ees' union membership, sympathies, and activities, created the impression of surveillance of employees union or other protected activities, conveyed to employees that it was fu- tile for them to continue supporting the Union because union representation would be detrimental to them, threat- ened employees with loss of economic benefits if they se- lected the Union as their collective-bargaining representa- tive, threatened employees with layoffs if they selected the Union as their collective-bargaining representative, and threatened employees with reprisals because they had se- lected the Union as their collective-bargaining representa- tive on March 23, 1976 - all by Auto Service Manager Ratliff; (II11) created the impression among employees of engaging in surveillance ef their union or other protected concerted activities by Automotive Accessories Manager Sheets on or about March 22, 1976, at Shakey's pizza res- taurant in Canoga Park; and (12) interrogated employees concerning their prospective vote in the union election and told employees that the union election was a personal re- flection on him by Store Manager Harris on or about March 23, 1976, at the Canoga Park facility. As to the first two items summarized above, the General Counsel contends that the conduct violated Section 8(aXI) and (3) of the Act. As to the remainder of the items, the General Counsel alleges that such conduct violated Section 8(a)(Xl) of the Act. 1. Ronald Coe Ronald Coe worked as a mechanic at Respondent's Ca- noga Park auto service center from September 1975 until March 26, 1976, when he was laid off from work. He signed a union authorization card and gave out four or five union cards to other employees in January and February 1976. Coe attended the breakfast meeting which the Company held for employees a week or two before the election. Ac- cording to Coe, John Bennett discussed insurance benefits in particular at the meeting. Coe testified: "It was brought up and he said he would not change any of his insurance benefits, that they were company policy and nation-wide, and they would not change those benefits."38 Coe ac- knowledged on cross-examination that Bennett said that insurance plan, our premium anyway and if necessary, we will close the auto center before we change it .... We will strike rather than change the insurance plan." Brian McCartney, a tire buster and battery man at Canoga Park, testified that Bennett told the group at the meeting that: '"tlhey would try to keep the union's health plan out of the contract. So they would strike negotiations (Continued) 39 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Company had its benefit program in effect at union and nonunion stores and that the Company had bargained with unions and unions had agreed to include it in their contracts. With regard to wages, Coe stated that Bennett told them that they would not receive what the Union was getting in San Francisco because it was too high and it would be impossible because the Company works on a low profit line and could not afford it. Bennett told them that wages had already been negotiated at Fullerton and that the Fullerton people were paid as much as and sometimes lower than what the Canoga Park employees were getting paid without a union. Coe said that Bennett told them that the wages at Fullerton were "frozen." He said the Canoga Park employ- ees were on a "docket system" with automatic wage in- creases. Bennett told them that the Canoga Park employees would not be getting any more than what the other stores had already negotiated. Coe said that Bennett also men- tioned that there was a strike in Redding, California, which had been going on for more than a year. Coe testified that Bennett said: "you can strike, but you will still be re- placed." 39 Prior to the election, Coe said that Bob Ratliff, auto service manager, told the employees in a group that even if the Union were voted in, it would not stop the Company from laying off if they had to do so. Ratliff suggested that they call the Fullerton store if they wanted to find out what the Union was and gave them some names and telephone numbers. Also during that meeting Ratliff told the employ- ees that the Company could drop their incentive pay if the Company wanted to do so once the contract was negotiat- ed.4 Coe described a conversation which he had with Ratliff a few days before the election in which Ratliff asked Coe: "What do you think about the union?" Coe responded that he did not know much at that point.41 On the morning of the layoff of Coe, he had a conversa- tion with Ratliff prior to his being advised by Store Manag- er Harris of his layoff. Coe testified that Ratliff said: "Didn't I know that if the union came in, that there might be a bunch of layoffs, saying it was slow and all this other stuff." Coe replied, "Sure." Ratliff asked Coe if he did not know that he would be one of the first ones because Coe was the last man on the seniority list. Coe said that he knew on that point there." Bennett testified that he always told employees that benefits were always a matter of substantial bargaining, like wages would be. He said that he told them that the Teamsters preferred their own plan and that Wards preferred to have its own plan because it was more economical to administer on a standardized basis and employees did not lose benefits when they were transferred among various branches. Bennett stated that the Company was proud of its plan which had been improved over the years "and we had just as much right to insist on our plans as the union did to insist on theirs." He said that he told them that union security and wages would probably be a stnke issue with the Teamsters, but no: benefits. He said that benefits was probably a strike issue with the Company. 39 Michael S. Hensey, a mechanic, testified with regard to Bennett's statement at the meeting that: "His statement was that they would get no more than what we were getting right now at the Canoga Park store, as far as wages go. Brian McCartney, a tire buster and battery man at Canoga Park, testified that Bennett told them regarding wages: "He said if the union came in, it wouldn't affect our wages. He said if we voted the union in, the wages would be frozen from the time of the election until they got a contract in." Bennett testified that he told the Canoga Park employees: "Well, I told that it was going to be him first, but he did not think it was fair. Ratliff said: "Well, according to the union, they lay off by seniority." Coe replied that it depended on what was negotiated in the contract. Store Manager Harris advised Coe that there was not enough money coming in and he was having to cut back. However, Harris said that he had made arrangements for Coe to transfer to the Eagle Rock store if Coe wanted to do so rather than be laid off at Canoga Park.42 Coe replied that he did not know about transportation and asked if he could advise Harris later. During the conversation Harris advised Coe that he was going by seniority and that Coe had the least seniority - a policy with which Coe ex- pressed disagreement since he felt that performance and production should be considered. The next morning Coe advised Harris that he would accept the transfer to the Eagle Rock store, but Coe subse- quently changed his mind and did not accept the transfer. Coe explained that the Canoga Park store was only three- fourths of a mile from his house whereas the Eagle Rock store was 35 miles from his house. Coe said that he had only one car which meant that his wife would have to ride the bus to her job in Hollywood. After the election was over, Coe initiated a conversation with Ratliff in which Coe told Ratliff that voting the Union in the store was not against one person personally and that it was just for the benefit of the employees. Coe expressed the belief that the employees would fare better this way and that it was not because of Ratliff. Coe said that Ratliff replied that he knew that it was because of him because he had talked with a service writer, Ricky Morrow. Coe testi- fied that the following then took place: We were talking outside and it was on the way up to the main store, and a crowd of people had gathered and we were talking back and forth about what had hap- pened. He was saying it took him by surprise. He felt that the vote was going the other way. In other words, it was going be a landslide for the company and he couldn't figure it out. But after this and that and he was telling [me] about a list of names of people that they had in the main store them that at Norwalk the rates of pay were higher than they were at Fuller- ton and basically that wages were an item to be negotiated at Norwalk." Bennett denied that he said that wages were frozen. Instead, he testified: "I said that once a union wins the election that the Company cannot thereafter change the terms and conditions of employment except through, normally, agreement with the union and that the company lost the right to make unilateral changes in any of its important, at least, terms and conditions of employment, including wages, but that these were subjects of negotiations." Bennett said that he did tell the employees about the strike at Redding and that "it was a squabble over union security." 40 Ratliff testified that he answered employees' questions about incentive pay by telling them it was a matter for contract negotiations. 41 Jeff Sigafoose testified that about a week before the election Ratliff asked Coe, Breskin, and Sigafoose, who were all standing close to each other, what they thought about the Union. He said that they replied that they did not know and wanted to hear something or see something before making a decision. He acknowledged that he had not related the foregoing in his pretrial affidavit. He explained that he did not recall it at that time. 42 Store Manager Harris testified that he made the offer of a transfer because Coe was such a good mechanic, but he was laid off because Coe had the least seniority. 40 MONTGOMERY WARD & CO. of everyone who voted for the union, and everyone who voted against the union. I told him it was impossible. He said they have got this list. I said, "The best you could do with the list is to guess at the names." He said, "That's true. If you look at the list, I doubt whether you'd have one or two names wrong on the list." * * He was - this is during the conversation as the list was brought up. Like he pointed to me and said, "I figure maybe you and Hensey was borderline." Dick Ludwyck for sure voted for the union. He didn't know, but he thought it would be for the union. It wouldn't be for the company. 43 Ratliff acknowledged having conversations with Coe and gave this version of one of them: I had several conversations with Ron Coe, a lot of my men, but I can't remember all of it. But I told him at one point that, you know, it might have had a personal affect on me. I didn't care which way they voted. I made that definitely clear to him and at the time Ron Coe told me, he said, you know, I asked him if it was me personally, am I doing some- thing wrong, you know, that the guys don't like that maybe I can correct. He said, no, nothing personal against you and that was the end. * * He asked me not to worry about it. People had their own decisions to make and they weren't voting for the union because of me and he said, I am not going to tell you who they are or anything, and I merely mentioned that, well, that is all right. I have got a pretty good idea up here anyway. My own list up in here (Indicating). 2. Jeff Sigafoose Jeff Sigafoose testified that on the Friday after the elec- tion at Canoga Park, which would have been March 26, 1976, he was reclassified from a mechanic's helper to a part-time tire buster. He said that Store Manager Harris told him that business was slowing down and that he did not want to see Sigafoose leave the Company. Therefore, Harris offered him a reclassification to tire buster rather than a layoff. Harris said that there would be no reduction 43 Craig Breskin, a mechanic at Canoga Park, gave a much briefer ac- count of a discussion at which Coe, Hensey, and he were present along with Ratliff. According to Breskin, Ratliff said that he had felt that the vote for the Union was actually against him personally, but that he did not feel that way anymore. He said that Ratliff expressed the view that it was basically the employees against the store. He stated that Ratliff also told them that the management at the store had a list of people who had voted "no" in the election. He stated that Ratliff also told them that prior to the election he had been asked how the auto service center stood as far as the votes were concerned, and that Ratliff had told them that Dick Ludwyck was a "yes" vote, but he was not sure of Coe and Hensey. 44 After the reduction in Sigafoose's hours. Brian McCartney voluntarily in the $4 an hour rate of pay, but Sigafoose's hours were reduced from 32 to 40 hours a week to 24 hours a week. Sigafoose accepted.44 He had begun work at the Company in March 1974 as a part-time tire buster and had been promoted to mechanic's helper. His only union activity was signing a union card in 1976. 3. Patrick Bridenbaugh Patrick R. Bridenbaugh worked at Respondent's auto service center in Canoga Park from January 1975 to early May 1976. He was hired as a tire buster and then received a raise and change in classification to tire buster and battery installer about 6 months later. He received a second raise about 3 months after that. About a week after the election Bridenbaugh said that Harris asked him if it would be all right to cut his working hours from 40 hours a week to 20 hours a week. Briden- baugh told Harris that he would try and see how it worked out. However, Bridenbaugh decided to look for another job and left the employment of Wards during the early part of May 1976. His only union activity was signing a union authorization card. 4. Elizabeth Duey Elizabeth Duey worked as a salesperson in the accesso- ries department at the Canoga Park store of Respondent. She was hired in July 1975. Her supervisor was Dean Sheets. She signed a union authorization card in 1975. Duey described a breakfast meeting which she said was held about 2 weeks before the election at the Canoga Park facility.45 She said that it was held in a room at the store where sales training meetings were held. At this meeting of employees she said that John Bennett told them that he wanted to give Wards' position on the Union coming in. According to her, Bennett stated that Wards had the same benefit program in effect at all of its locations across the country at both union and nonunion stores. He said that the Company had been bargaining with unions with re- spect to benefit programs, but the Union always wound up accepting the benefit program and that the Company had every right to take a strike rather than change its benefit program. Duey stated: "He just said they would not change their benefit program." Additionally, Duey stated that Bennett told the employ- ees that they would not receive anything extra from the Union and that up North both union and nonunion stores had the same pay scales. He said that the employees were presently on a docket system for automatic pay raises. He also mentioned that there had been a strike at the Wards' told Ratliff that he would take an 8-hour reduction in his working hours and give that time to Sigafoose. McCartney and Sigafoose were roommates. Ratliff said that it did not make any difference to him. so McCartney's working hours were reduced to 32 hours a week and Sigafoose's hours were raised to 32 hours a week. McCartney said that his full 40 hours had been restored to him the week pnor to the time he testified on June 11. 1976, but that Sigafoose was still working 32 hours a week. 45 Duey acknowledged at the hearing on cross-examination that she had not covered the breakfast meeting in her pretnal affidavit which she had given to a Board agent. Her explanation was that at the time she gave the statement she was more concerned with the reduction in her working hours. 41 DECISIONS OF NATIONAL LABOR RELATIONS BOARD store in Redlands for over a year and that the Company had hired an entirely new group. With regard to the Fullerton and Norwalk stores, Duey stated that Bennett told them that there would be no pay raises at Fullerton and Norwalk while contract negotia- tions were going on even if it went on for as long as a year. She said that he stated: "Their wages would be frozen during negotiations." He told them that the Canoga Park employees were not at a better pay scale than the Fullerton and Norwalk employees would be. The Shakey's Pizza Parlor in Reseda was the location of another meeting of the employees with management on the night before the election at Canoga Park. She said after a group meeting the persons broke up into small groups. She sat at a table with John Bennett and other persons. She said that about 10 minutes later her supervisor, Dean Sheets, came and sat down next to her and asked Bennett if he knew that he had spent the better part of the evening talk- ing to the biggest union sympathizer that worked in the auto center.4 6 Bennett replied that it was hard to believe that anyone who had spent 6 years with the White Front stores would be a union sympathizer. Bennett said that the Union was the reason why White Front went out of busi- ness. Duey disagreed and felt it was a situation of "too many chiefs and not enough Indians." 47 Duey said that Sheets then asked her how she felt the election was going to go the next day. Duey replied that she felt it would go for the Union by a fair majority. She then asked Sheets how he felt the election was going to go, and he thought it would be for the Company, but it would be close. Bennett testified that he had "a substantial discussion" with a woman employee at the pizza parlor after the ques- tion and answer period. He said that they discussed the Company's affirmative action program for females and her going back to school. He said that she inquired about any formal requirements which the Company might have for advancement and promotion. He asked how she got into the business and she told him about her work for the White Front store until the store was liquidated. She told him that she had been a member of a union at White Front. Bennett recalled that Dean Sheets made some remark to him about his spending the better part of the evening with the biggest union employee in the store. Bennett said that Sheets asked him how the election was going to go and Bennett replied to Sheets: "It beats the hell out of me. I think it's going to be close." He said that the woman made no response to that, but that she did tell him that she felt the reason that White Front had gone bankrupt was that the place seemed "totally disorganized and nobody knew what anybody else was doing." However, according to Bennett, the woman found that to be a good atmosphere because she was allowed to work in a lot of different areas and get a very broad experience. Bennett said that he told the woman that he knew the former labor relations director of White Front at the time and the labor relations director 48 In her pretrial affidavit, Duey stated that Sheets asked Bennett: "Do you know that Kay is one of the biggest pro-union people in the shop?" At the hearing she acknowledged that she did not use the term "union sympa- thizer" in her affidavit, but she said that she had thought about it since giving her affidavit and that was the term used by Sheets. 4? Jeff Sigafoose said that he was at the table and talking with Bennett about skiing. He testified that it was Sheets, rather than Bennett, who spoke was an international representative of the Retail Clerks union. Bennett said that either Sheets or the woman's boyfriend might have brought up the subject of the union's being the cause of White Front's financial plight. Bennett said that the woman responded that it was "bad management." On the day of the election at Canoga Park, Duey had a conversation with Store Manager Warren Harris. She said that Harris told her that she had a "big decision" to make; that he was confident she would make the right decision, and to give it a lot of thought because it was a big decision. A short time later, she said that Harris came by again and told her: "I have not been a bad store manager, and I am sure you are going to be all right today." 48 After the election was over, Duey said that she had a conversation with Bob Ratliff, auto service manager. She testified on direct examination: And he asked me if I (knew] who voted "yes" or "no." And I said, well, I am sure that he knew who voted ,'no.," How hard could it be for him to figure out who voted "yes?" And he asked why everybody in the back shop voted for the union against him, and he felt it was a personal affront to him. I told him they had been unhappy with Montgomery Ward and they felt it was better for them, and I don't think it was anything personal. And he asked if I knew how Jeff Sigafoose voted. And I said, "Yes," but I didn't tell him how. On cross-examination Duey stated that she believed that Ratliff asked her who voted "for" in the election. In her pretrial affidavit, she stated that he asked her if she knew the 10 people who had voted "no." Duey's explanation was that: "Basically, it's the same thing. He asked me if I knew how everybody had voted." Ratliff admitted that he asked Duey if she knew who voted for the Union. Ratliff testified that Duey replied "yes" and he said nothing else. Three or four days after the election, Duey was advised that her working hours were going to be reduced from 40 hours to 30 hours. She was advised by Russ Speaker, per- sonnel manager, and Store Manager Warren Harris of the reduction. According to her, they told her that they knew that she was taking 15 units of courses in business manage- ment and finance and that was a lot with 40 hours of work. They said that in order to "keep their payroll in perspec- tive, they were going to cut me 10 hours but I would still receive my full-time benefits for 30 hours." She said that she then spoke with Dean Sheets who was upset about the reduction in Duey's hours and the fact that another salesman had been laid off. She told Sheets that to her about White Front and asked Duey why she would want to support another union after she saw what happened at White Front. Sigafoose said that Duey responded that it was not the Union that caused White Front to go out of business. 48 Jeff Sigafoose testified that Harris told Duey and him on the day of the election: "This is a very important day for you. I hope you make the right decision. The decision will be a reflection upon me and the company." 42 MONTGOMERY WARD & CO. she could not understand why the Company would cut a commissioned salesperson because their hours would not cost the store anything. Prior to the reduction, Duey received a $100 draw and 6- percent commission on all of her sales. After the reduction, she received a $65 draw. If she did not make her draw, Respondent then paid her at the rate of $2.50 an hour for each hour she worked. Duey said that she did not make her $65 draw for 2 weeks in April 1976 and for I week in May 1976. In her opinion the reason that she could not make her draw was that "business was slow." Duey was restored to 40 hours per week about 2 weeks prior to the hearing in June 1976. Store Manager Harris testified that Duey told him: "I wanted to work 30 hours a week anyway. I can't make my draw at 40." Harris continued and testified that she "thanked us for cutting her hours from 40 to 30, because she was having a very difficult time earning her draw." 5. Michael Hensey Michael E. Hensey, who had worked as a mechanic for 3 years at the Canoga Park auto service center, testified that Ron Feola, who was formerly assistant auto service manag- er at Canoga Park, telephoned him a few days after Feola transferred to the Eagle Rock store as auto service manag- er. Hensey said that he asked Feola if there was any union organizing going on at Eagle Rock. Feola answered yes, there was, so Hensey inquired why they wanted to go union. Feola said that there had been a lot of problems and that the employees had not liked the former service manag- er. Shortly thereafter, Hensey had still another conversation with Feola when Feola came by the Canoga Park store. Again, Hensey initiated the inquiry regarding the Union by asking if the election at Eagle Rock had been held. Feola told him that the election had been held and that the Union had lost. Hensey then testified: "[hle asked me at that time if I had been contacted by the Union or if any- body had been down and approached me about the Union. I told him, no, I hadn't been approached." Hensey then asked Feola who was the organizer behind it and Feola told him that it was Joe Henderson. Feola told him that after the Union had lost, Henderson got belligerent and caused a commotion. Feola said that they had to "throw him off the premises." Feola also told Hensey that Hender- son carried a gun. During the same conversation, Hensey asked Feola if they knew who was behind the Union and Feola told him that he had a pretty good idea of who the people were. Feola said that they were pretty sure of the battery man at 49 Feola testified that he did return to Canoga Park one time after his transfer to Eagle Rock, but he did not recall any conversation with Hensey. When confronted with the specific details of Hensey's version of the conver- sation, Feola did not recall them except he specifically denied the remarks attributed to him regarding Henderson's conduct at the Eagle Rock election and the remark about getting rid of the union supporters. Nevertheless, Feola did testify that he overheard Henderson and another employee, Mike Noriega, yelling about 100 feet away from where Feola was located at Eagle Rock on the day of the election. Feola also related two conversations which he had with Henderson on the day of the election at Eagle Rock. The first one was prior to the election and Feola said Hender- son "told me he hoped the better man would win and he hoped I didn't have Eagle Rock and they were pretty sure about the other sup- porters. Hensey asked what they were going to do with those people and Feola said that "the store would probably get rid of them." 49 Hensey also related a conversation which he had with Ratliff after Feola had transferred to the Eagle Rock store. In that conversation Hensey asked Ratliff if he thought that the Union was going to come over and Ratliff replied: "I imagine they will get around to everybody." Hensey then asked whether Ratliff cared and Ratliff responded that he did not care whether they went union or not at that time. Ratliff said that it might affect his override pay if they had to pay higher wages. Prior to the election Hensey had another conversation with Ratliff in which Hensey asked Ratliff about the insur- ance benefits. Hensey explained that this was a particular concern to him since his wife was expecting a child. Hensey said that Ratliff told him that "we would lose our benefits, insurance benefits, until we got a contract with the union if we voted the union in." 5 Ratliff also told Hensey that if the Union was voted in, the Company would not have to pay incentive pay anymore and that wages would probably be worse. In still another conversation with Ratliff prior to the election, Hensey said that Ratliff jokingly asked him, "How come nobody talked to me about it?" Then Ratliff asked Hensey who had contacted Hensey and when Hen- sey replied that he did not want to say or get anyone in trouble, Ratliff stated: "I don't mean contacted yott. I know it was Dick Ludwyck." Then Ratliff asked, "How were you contacted?" Hensey again replied that he did not want to answer because he did not want to get anyone in trouble. On the day of the election Store Manager Harris asked Hensey if he was going to support him in the election. Harris told him that it was a direct reflection on Harris how the election went. Harris said that he had not been such a bad manager. Hensey told him that he did not think he had anything to worry about. Harris replied that he was worried and it was a direct reflection on him. Also on the day of the election, Feola spoke to Hensey on the telephone. Feola asked if the election was going to be held that day and Hensey replied that it was going to be later that afternoon. Feola told him that he knew that it was none of his business, but he asked Hensey how he was going to vote. Hensey responded that it was none of Feo- any hard feelings about it." The second conversation was after the election and Feola said that Henderson "was just telling everybody that he was going to close the auto center down. going to park trucks in front of the door and he would close us down within five days." Feola said that he told Henderson that the better man won and "that was me." Special Organizer Henderson's description of his visit to the Eagle Rock location just prior to the election and just after the polls closed for the count of the ballots was that it was uneventful. He said he encountered no prob- lems, had no argument, was not asked to leave the premises by a supervisor and denied saying that he would close down the Eagle Rock location. Hen- derson testified that he never carried a gun with him. so Ratliff denied saying anything like that. 43 DECISIONS OF NATIONAL LABOR RELATIONS BOARD la's business, but that Hensey did not think that the Union would get into the store.51 A day or two after the election at Canoga Park, Ratliff asked Hensey to take the job of shop steward if that job was offered to him. Hensey said that he did not want to get that involved with any part of the Union. Then Ratliff asked Hensey how he had voted. Hensey testified that Rat- liff said: "He said that I could either tell him the truth, or could lie to him, but either way he'd know in a few days. And I told him I wasn't going to tell him, and it didn't make any difference." Hensey had still another conversation with Ratliff after the layoffs had taken place. Hensey expressed the view to Ratliff that it was strange that everything was fine before the election, but after the election the Company suddenly cut back on working hours and laid people off. Hensey then testified: "I made the statement to Ratliff that I wouldn't be surprised if they tried to get rid of all of us, just to get even. He made a statement like: 'Why do you think they have me carrying this book?' or words to that effect." Ratliff said that the foregoing conversation was just a joke and "everybody was laughing about it." Ratliff testi- fied that he said nothing in response to Hensey's statement and "I just laughed at it too." Ratliff acknowledged that he carried a notebook, but he said that the purpose for carry- ing the notebook was to record the cleanliness of the as- signed areas since he was on the Company's safety commit- tee. 6. Breskin, Ludwyck, and Wilhoyt Craig N. Breskin, a mechanic at Canoga Park, testified to the following conversation with Bob Ratliff, auto service manager: I had a conversation with Bob Ratliff on March 15. It was a Monday. It was approximately 9:00, 9:30 in the morning. He had asked me to come to the engine room which was the farthest bay in the auto service center and he asked me how I felt about the union. I said I really hadn't decided as far as [the] union was concerned and he wanted me to ask him any questions that I had on the union but I really didn't have any questions to ask him. He proceeded to tell me that as far as wages were concerned if the union did come in, that the company wouldn't give the mechanics any wage increase. He also stated that the incentive program was a Montgomery Ward program and that if the union did in fact come in, that they would eliminate that program. He also mentioned like if there was a strike and that if they had pickets out in front, that we couldn't cross the picket line without being fined. He also stated that along with not being able to have any wage increase, that about the only thing we could do would be to strike. 51 Feola testified with regard to a telephone conversation with Hensey as follows: 1I did ask him how it looked, if it looked like it was going union or non-union. That is all I ever asked him." Feola said that Hensey replied that he didn't know. Ratliff admitted that he asked Breskin how he felt about the Union. Ratliff testified that Breskin simply replied that he had not formed an opinion. Richard Ludwyck, who has worked as a mechanic for over 9 years at Respondent's auto service center in Canoga Park, described conversations which he said occurred in March 1976 during coffeebreaks at the auto service center. Ludwyck said that Ratliff told the employees that they would lose their incentive pay and probably be without group insurance until the contract was signed. Ludwyck said that Ratliff also told them that Fullerton was sorry that they had joined the Union and that they should call Fullerton and find out what they thought about the Union. Ludwyck said that on another occasion as Ratliff was walking by, Ratliff told them that a contract had been negotiated at Fullerton, but they were not getting the amount of money that Canoga Park employees were get- ting now without a contract. Ludwyck related another conversation which he had with Ratliff about 10 o'clock the same morning that the breakfast meeting had been held at Canoga Park. Ludwyck did not attend the breakfast meeting, but he was urged to do so by a parts employee idenitified only as Barbara. Ludwyck said that Ratliff began their conversation by say- ing that Ludwyck should be careful as to what he said to Barbara because he did not know if she would say some- thing to Dean Sheets and it could get to the main store. Ludwyck replied: "Well a lot of times I will say something just to see how long before it gets back to me." Ludwyck said that Ratliff asked him what he thought about the Union and what he thought the Union could do for him. Ludwyck mentioned job security and Ratliff told him that he did not have anything to worry about. However, Ludwyck asserted that Operating Manager Rambat had wanted to fire several other employees and also an incident in 1974 involving Ron Feola which Ludwyck said almost caused him to file a charge with the NLRB. Ratliff gave a different version of his conversation with Ludwyck. Ratliff testified: I told him not to go around telling people how he was going to vote. Basically because he worked with, you know, other people out there and they may be for or against the union and you may get caught in some kind of a con- flict working out there. Some people might be for it and knowing he is against it, it might create some kind of a discomfort type conflict and I didn't want it to happen. Curtis F. Wilhoyt, a mechanic at the auto service center at Canoga Park for about 2-1/2 years, said that both Oper- ating Manager Rambat and Store Manager Harris sepa- rately asked him why he wanted the Union in. Wilhoyt expressed concern about job security under Ron Feola. He said that Harris told him that Feola had been transferred, but Wilhoyt said that Feola could be transferred back or another man could be given the same authority.52 Wilhoyt also related a conversation during coffeebreak at the center when Ratliff told the employees that if they 52 Store Manager Harris testified that he did not recall such a conversa- tion with Wilhoyt. MONTGOMERY WARD & CO. voted the Union in the shop, he would be fired because it would mean that the employees did not have any faith in him. On another occasion Wilhoyt stated that Ratliff said that he would quit work there if the employees voted in the Union because Ratliff would not make his bonus or over- ride. On still another occasion Wilhoyt said that Ratliff told two or three employees that Ratliff "knew that Dick Ludwyck was the one behind the dissension causing the interest in the union." Sometime after the election Wilhoyt and Ratliff were talking in Ratliff's office. Wilhoyt testified that Ratliff asked: "Are you telling me you didn't vote for the union?" Wilhoyt replied that he did not say one way or the other. According to Wilhoyt, Ratliff told him "that he knew Mr. Ludwyck was the one who had gotten the union in the shop." 7. The Company's records concerning Canoga Park District Operating Manager Harris said that he took a "hands-off" stance with regard to making reductions at the Canoga Park facility. He pointed out that for three consec- utive months Canoga Park had failed to meet its budget for net auto service income and said, "Well, each week I felt like taking action. We were talking about it. But again, this situation was the same as the other two." Harris stated that they had been notified that an election would be held dur- ing the latter part of March 1976, so after discussion with Bennett, it was a "hands-off' position until after the elec- tion. The company records show the following: CANOC.A PARJ' 1975 Apr. M.y June July Aug . Sept. Oct. Nov. Dec. 1976 Jan. Feb. Ia r. Apr. May AUTO VL ICE 513,67b 19 ,731 51&,423 512,345 S1 3,545 $12,056 511 963 $15,068 510,143 512,431 SI13,717 $12, 028 511,746 515,393 PAYROLL 5 9,184 511,540 S 7,655 5 h,673 $ 9,957 S 8,581 $ 9,446 $13,212 $ 9, 283 $10,247 $12,800 $1 0,8q9 $ 9,663 $11,956 NET ALTO SE RVICE IN COT S3,167 57,376 56,053 53, 121 53,511 $2,780 $2,106 $1,457 S 310 $1,338 $ 414 $ 762 $1,248 $2,342 Significantly, if Respondent had made no reductions and the payroll expense had remained at the March 1976 level of $10,899, Respondent would have had a gain in April 1976 of $847 instead of $1,248 which it had for April 1976 after the reductions. Warren Harris, the store manager at Canoga Park, testi- fied: "The third week of February I felt was a poor time to cut the payroll back with an election coming up. I felt in all fairness to everyone that I should maintain the payroll and try to get the best I could out of the collections. Win, lose or draw from the election I knew I had to cut the payroll, and I did, two days after the election." On May 11, 1976, a memo was sent to Respondent's store managers in the Los Angeles area from District Mer- chandiser R. V. McClelland. The memo stated: The following are some comments on Auto Service pro- vided in our Auto Centers. 1. On Saturday shutting off mechincal [sic] and service installation at 10:00 a.m. Too busy to handle anymore. 2. Take no service work on Saturday that requires over 1- 1/2 hours. 3. Sending out installations of our auto sound pace setter speed controls, and burglar alarms. No help- can't handle. 4. New installation on rebuilt engines and auto air conditioning running one to two weeks behind. Since these comments all relate to one area, lack of help in our units, I suggest we review this area for possible problems. The message carried to the field on the align- ment and brake program spring 1976 in no way meant to shift help at the cost of another service area. District Operating Manager Ray Harris was familiar with the facts which caused the memoradum to be sent to the store managers. He said that the problems related to the Eagle Rock store where "we didn't have the proper scheduling within the store, or the personnel qualified to handle the work and the installations were running be- hind." However, Harris added, "The cutting off of work at 10:00 was somewhat prominent in other locations." Harris pointed out that Saturdays were the busiest days for their retail stores and their auto service business. Harris said that the point of the memo was that Saturdays were "where we wanted to build our manpower m all stores." F. Analysis and Conclusions 1. John Caudill It is riot necessary that a person possess all of the statuto- ry authority set forth in Section 2(11) of the Act in order to be found to be a supervisor because Section 2(11) of the Act is to be read in the disjunctive. Ohio Power Company v. N.LRB., 176 F.2d 385 (C.A. 6, 1949), cert. denied 338 U.S. 899; Arizona Public Service Co. v. N.LRB., 453 F.2d 228 (C.A. 9, 1971). It is also clear that possessing the title of "assistant service manager" is not determinative. As ob- served by the Administrative Law Judge whose findings were adopted by the Board in D. H. Overmyer Co., Inc., 196 NLRB 789, 791 (1972): "But it is familiar and sound doc- trine that such a title is not determinative of supervisory status. Critical rather are the functions performed and the authorities possessed or exercised." A review of the testimony given by Caudill on direct examination, as contrasted with his testimony given on cross-examination, reveals that Caudill understated his du- ties and responsibilities in many respects. The testimony which he gave in this proceeding was contradicted in sever- al respects with his own earlier testimony in his unemploy- 45 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment hearing and his pretrial affidavit. It seems to me that the statements made by Caudill in his earlier unemploy- ment hearing and in his pretrial affidavit, which he ac- knowledged on the witness stand to be truthful, are the cor- rect versions especially in light of the testimony from the other witnesses. I find that the testimonies given particular- ly by Ellis and Negron, and also the employees at the auto service center at Fullerton who testified, are more accurate descriptions of Caudill's actual duties and responsibilities, and I credit their testimonies with regard to Caudill's duties and authorities. Based on their credited testimony, I conclude that Cau- dill assigned work to employees and responsibly directed employees in their work and that he did so in the interest of Respondent and with the use of independent judgment. Accordingly, I find that Caudill was a supervisor within the meaning of Section 2(11) of the Act at the time of his termination. In reaching that conclusion I find it signifi- cant that Caudill assigned work to employees in the shop literally thousands of times, and on only one occasion did one employee ever fail to do the work which Caudill had given to him. That employee was Villanueva and he was promptly threatened with discharge by higher management for failing to carry out the work order which Caudill had given to him. It seems to me that the Villanueva incident removes any doubt as to the authority which Caudill pos- sessed and exercised regularly. Caudill's assignments of work were not merely requests from one rank-and-file em- ployee to another rank-and-file employee. They were or- ders to employees from a supervisor, and management made it clear in the Villanueva incident that the penalty for failing to obey his orders was discharge. Since the employees possessed various skills and profi- ciencies in performing certain types of work and since some had State of California licenses for smog certifica- tions, brake inspection and headlight inspection, discretion and judgment would be needed in making the work assign- ments. The nature of the repair work to be done, the prom- ised time for completion to the customer, the workload of the individual employees, and the speed with which certain employees could complete their work are factors which would necessarily be considered in determining to whom the work should be given. It is also significant that Caudill had the authority to reassign an employee from one task to another and that he did so regularly. He also asked the mechanics about their progress on their work and acknowledged that he was to make sure that the work was completed on time. When employees were working too slowly, he told them to speed up. The incident involving McDougal shows that Caudill had the authority and did send an employee home from work for not performing his job properly. The Snodgrass incident reveals that Caudill had the authority to repri- mand an employee for taking too long on his break. Cau- dill also had the authority to call into work employees as he needed them due to the workload, and he had the authority to ask that employees work overtime. All of these facts point to the conclusion that Caudill was not a rank-and-file employee, but instead that he was a supervisor. There are many similarities between the duties of Foreman Philip Asper, described at 326 and 327 in the Board's decision in Kohl Motors, Inc., 185 NLRB 324 (1970), and the duties of Caudill in this case. Counsel for the General Counsel points out those similarities in her brief, but the foregoing facts demonstrate that Caudill possessed and exercised greater authority than Asper did in Kohl Motors. Unlike Caudill's regular performance of his duties at the service desk, Ralph Negron helped out at the service desk for a few hours at a time when he was needed. Except for the one time that he filled in for Ellis during Ellis' 2-week vacation, Negron assisted at the desk, particularly during the morning rush period when customers brought in their cars for repair. Such assistance on an as-needed basis for irregular periods of time would not necessarily make Neg- ron a supervisor. In Meijer Supermarkets, Inc., 142 NLRB 513, 517, fn. 8 (1963), the Board said: "In accordance with established policy the Board will not exclude persons as supervisors who do not at present exercise supervisory au- thority or do so only on an irregular or sporadic basis," citing Huntley Industrial Minerals, Inc., 131 NLRB 1227, 1228 (1961). See also Highland Telephone Cooperative, Inc., 192 NLRB 1057 (1971), and Commercial Fleet Wash Inc., 190 NLRB 326 (1971). Thus, the fact that Negron worked at times on the service desk, as did some other employees occasionally, does not detract from the fact that Caudill had greater authority over the employees and exercised it, as revealed in the examples of Villanueva, McDougal, and Snodgrass. Because I have concluded that Caudill was a supervisor within the meaning of the Act, he did not enjoy the protec- tion afforded by Section 8(aX3) of the Act at the time of his termination. Therefore, it is not necessary to extensively discuss the circumstances which led up to his termination by Respondent or to examine Respondent's motivation for discharging him. The General Counsel contends that Cau- dill was fired because of his union activities and Respon- dent contends that Caudill was discharged because he re- peatedly failed to work his scheduled hours. However, it is unnecessary to set forth my analysis of those contentions here since Caudill did not have the protection of Section 8(aX3) of the Act. Furthermore, this is clearly not a situa- tion where the General Counsel has alleged that the dis- charge of a supervisor violated Section 8(a)(1) of the Act because of its restraint and coercion on employees, such as in Better Monkey Grip Company, 115 NLRB 1170 (1956), enfd. 243 F.2d 836 (C.A. 5, 1957), cert. denied 355 U.S. 864 (1957); Illinois Fruit & Produce Corp., 226 NLRB 137 (1976). An additional contention of Respondent is that Caudill was a managerial employee as well as a supervisor. The Supreme Court has made it clear that managerial employ- ees are not covered by the Act. N.L.R.B. v. Bell Aerospace Company Division of Textron, Inc., 416 U.S. 267 (1974). However, in view of my determination that Caudill was a supervisor within the meaning of the Act, it is unnecessary to explore the grounds on which that contention rests. In view of the foregoing, I shall dismiss the 8(aX)(1) and (3) allegations of the complaint pertaining to the termina- tion of Caudill. 46 MONTGOMERY WARD & CO. 2. The layoffs and reductions in hours The General Counsel alleges that the layoff from work of certain employees and the reductions in working hours of certain employees at the Fullerton, Norwalk, and Canoga Park locations violated Section 8(a)(1) and (3) of the Act. The Board has recently considered allegations regarding the layoffs of certain alleged discriminatees in Publishers' Offset, Inc., 225 NLRB 1045, 1046-47 (1976), and held as follows: In view of the foregoing, it is clear that all the ele- ments are present for finding that the layoffs of the six alleged discriminatees were motivated substantially by their union activities. Thus, there is the precipitous na- ture and timing of the layoffs; the selection of employ- ees for layoff, most of whom were known adherents of the Union; Respondent's demonstrated union animus as evidenced by coercive interrogations; the impression of surveillance, and in particular, Trousch's unlawful admonition to the three full-time Press II employees to forego their union activities if they wanted to be re- called; and lastly, our conclusion, for the reasons set forth below, that Respondent's asserted economic de- fense cannot withstand close scrutiny. For all these rea- sons, we find, contrary to the Administrative Law Judge, that Respondent laid off the six alleged discrimi- natees in part, if not entirely, to thwart the Union's budding organizational drive by eliminating from its payroll for various periods of time those employees who it knew were, or were suspected of being, active partici- pants in the nascent union campaign. In examining some of the elements set forth in the Pub- lishers'Offset holding and applying them to the facts in this case, the first element to be considered is the precipitous nature and timing of the layoffs. In the present case the layoffs and reductions at Fullerton and Canoga Park came without advance warning that layoffs were contemplated. Norwalk is a somewhat different matter since Store Man- ager Johnson had discussed the possibility of a layoff at least a month or more prior to the January 1976 layoff at Norwalk. The contemplated layoff was not carried out at the earlier date after an employee had voluntarily left work at that facility. When the reductions finally were made in January 1976, they were precipitous. With regard to the timing of the layoffs, the one at Ful- lerton took place 2-1/2 months after the Board-conducted election on September 5, 1975, and the ones at Norwalk and Canoga Park took place within days after the elections at those facilities. Of course, these were not the only facili- ties of Respondent in the Los Angeles area where reduc- tions were taking place. Certainly reductions can be ac- complished by not replacing employees lost by attrition or discharge or thefts or other causes. Other stores where no elections had taken place also had layoffs and reductions. Furthermore, Respondent did not make reductions and layoffs only at stores where the Union had won elections, as evidenced by the Eagle Rock store. Since all three of the layoffs in issue took place after the elections at the respective stores, it cannot be argued that Respondent took such action to influence the outcome of the election at that particular store. The argument that the layoffs and reductions were retaliatory for selecting the Union is weakened by the fact that there were layoffs and reductions at stores where the Union lost or where no elec- tion was held. Instead, the General Counsel urges that the layoffs at Fullerton and Norwalk were "a display of pow- er." In her brief, counsel for the General Counsel argues with respect to the Norwalk cutbacks: Respondent's cutbacks at Norwalk, as well as its lay- offs in Fullerton, [were] a display of power. In simple and forceful terms, it told employees that the Union was powerless to prevent Respondent's retaliation against employees for their union support. Although this power display could not alter the Norwalk election results, it might well affect those at other of Respon- dent's facilities. Since the election at the Fullerton facility was the first of the eight elections eventually held and since four elections were held after the Norwalk reduction in hours, the Gener- al Counsel's theory warrants further consideration in weighing the "timing" element of the General Counsel's case. There was a hiatus of several months between the Fullerton election on September 5, 1975, and the election conducted at the second facility, Santa Ana, which was held on January 2, 1976. However, by the time of the lay- offs at Fullerton, representation petitions had been filed by the Union at three other locations - Santa Ana, Hunting- ton Beach, and Norwalk. None of those elections at those facilities were held near the time of the Fullerton layoff, however, because all three of those elections were held in January 1976. Also, at the time of the Fullerton layoff, the Union had not yet filed petitions at Eagle Rock, Rose- mead, Montebello, or Canoga Park and the evidence does not establish that at the time of the Fullerton layoff Re- spondent had definite knowledge that petitions would be filed at those last four locations. In fact, the representation petitions at Montebello and Canoga Park were not filed until after the Norwalk reductions had taken place. There were two other elections in January 1976 after the Norwalk reductions, and those were on January 16 at Huntington Beach and on January 23 at Eagle Rock. Then, there was another hiatus between elections until March 1976. Thus, from a "timing" standpoint, the General Counsel's argu- ment carries more weight with regard to the Norwalk facih- ty, but it has no applicability, of course, to the Canoga Park layoff and reductions because the last election was held at Canoga Park on March 23, 1976. The record reveals no representation petitions pending at any other of Re- spondent's greater Los Angeles area stores at that point in time. The next factor mentioned in the Publishers' Offset hold- ing is the element of "the selection of employees for lay- off." As to that element, the uncontested evidence is clear and convincing that Respondent used a nondiscriminatory basis in selecting the employees for layoffs or reductions in working hours. "There is nothing in the National Labor Relations Act that requires layoffs to be made only on the basis of senior- ity or any other particular criterion, so long as union or concerted activities have no role in the decision." Para- 47 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mount Metal & Finishing Co., Inc. and Paramount Plating Co., Inc., 225 NLRB 464, 465, fn. 5 (1976). Clearly, Re- spondent in the present case was not required to utilize seniority in making its selection of employees, but it did so even at the cost of losing the services of some of its good producers. Whether that decision was wise or reasonable, the Board has held, is not required by the Act. In Para- mount Metal & Finishing Co., supra, the Board stated at 465: But the National Labor Relations Act does not re- quire that an employer act wisely, or even reasonably; only, whether reasonable or unreasonable, that it not act discriminatorily. Even if we find an employer's ac- tion unreasonable, that is only evidence that it may have acted discriminatorily, and hence unlawfully. [Footnote omitted.] In the present case Respondent followed in each instance the individual's seniority within his job classification in reaching its decision as to who should be laid off or re- duced in hours. Respondent also told the affected employ- ees that the basis for their selection was seniority.53 Respondent's attorney argues in his brief with regard to the General Counsel's position on the selection of employ- ees: "It does not contend that the employees were discrimi- natorily selected from within the unit involved. Thus, what is contended is that Wards lashed out indiscriminately against some of its best employees simply because a major- ity of them had voted for representation." Counsel for the General Counsel sets forth this theory in her brief with regard to the selection of employees for layoff at Fullerton: It is not important that General Counsel may not have specifically shown that Respondent selected the employees for layoff based on their union activities, for it was not specific employees that Respondent wished to make unhappy, but rather, it was Respondent's de- sign to create in its employees' minds that Respondent's actions were based on union considerations. Respon- dent succeeded so well in its objective that even the employees' supervisor, Ellis, was moved to comment on it. The latter has reference to William Neal's testimony re- garding a comment made by Service Manager Ellis at the bar known as 2 J's. Neal testified that he asked Ellis if he thought the layoff was "a union move." According to Neal, Ellis then replied: "It has to be." Ellis specifically denied having said that and instead he testified that he told them that the layoff did not have anything to do with the Union but was due to the time of the year. None of the other employees present at 2 J's lent support to Neal and thus Neal was left standing alone in making that claim. If Ellis had, in fact, made that statement, it would seem to be a statement that the other persons would have remembered since the layoff was the prime subject of the conversation. Since Neal left 2 J's sometime between 7:30 p.m. and 8 p.m., the statement by Ellis, if made, must have been made early in the evening. Whether that was prior to the time 53 There is no 8(a)(5) allegation in the complaint. Thus, I make no com- ment or findings as to whether Respondent had an obligation to bargain with the Union regarding the layoffs and reductions. that James became "liberated" with some drinks that eve- ning is unknown, but at least, if the statement had been made by Ellis, it would have had to have been early in the evening. See the comments of the Administrative Law Judge whose findings were adopted by the Board in Valley Iron & Steel Co., 224 NLRB 866, 868, fn. 4 (1976). In view of the foregoing, I credit Ellis' denial that he made the comment regarding the Fullerton layoff which was attrib- uted to him by Neal. In Publisher's Offset, the next element set forth by the Board was the "demonstrated union animus" of the re- spondent in that case. I have given that factor consider- ation here. The independent violations of Section 8(a)(1) of the Act which I have found will be set forth specifically later in this Decision, but I have weighed those unfair labor practices and the expressions of union animus in attempt- ing to determine Respondent's motivation in making the layoffs and the reductions in working hours. The final element discussed in Publisher's Offset was the Board's conclusion "that Respondent's asserted economic defense cannot withstand close scrutiny." It was understandably difficult for the witnesses in this proceeding to testify from memory in June 1976 as to their opinions and impressions of how busy they were at a given moment many months earlier. It is recognized that such testimony of necessity must be subjective since the witness is giving his own opinion and impression. The documenta- ry evidence furnished the more reliable account of what had taken place. However, even the documentary evidence has to be evaluated with the caveat that there are various factors at each store which have an effect on the records. For that reason, comparing store A and store B will not necessarily be comparing the same thing. The best example of this is the Santa Ana store which has had a long history of losses and has undergone several changes in manage- ment. While all of the stores involved in this proceeding are located in the same geographical area, it is a large area, the stores do not open at the same time, and thus have differ- ent levels of established business. Also, there was some testimony with regard to the income level of the people in certain areas where the stores are located; the effect of new car sales on Respondent's business of repairing cars; the effectiveness of the advertising by Respondent in bringing in customers; the variations in the productivity of certain employees; and changes in auto service managers at cer- tain locations. Because of those varying factors, it is more meaningful to look at each store on an individual basis and examine the records for the periods before and after the layoffs and reductions. The pertinent portions of that examination have been set forth earlier. Without repeating the analysis of those figures, it is significant to note with regard to the Fullerton facility that, if Respondent had not made the layoffs in November 1975 and had maintained its payroll at the November 1975 level, Respondent would have suf- fered a loss of $2,031 in December 1975 at that facility. After making the layoffs, the Fullerton auto service center showed a gain for December 1975 in its net auto service income of $1,308. Similarly, without unnecessarily repeat- 48 MONTGOMERY WARD & CO. ing the Norwalk figures, it is significant that, if Respondent had not made the reductions at Norwalk in January 1976 and had maintained its payroll expense at the December 1975 level, Respondent would have suffered a loss of $468 in January 1976 instead of making a net gain of $1,710 in its net auto service income for that month. At the Canoga Park facility, if Respondent had made no layoffs or reduc- tions and maintained its March 1976 payroll expense into the following month, Respondent would have had a gain of only $847 as compared to $1,248 for April 1976. Respondent, of course, is not required to suffer a loss just to prove its point. The records show that Respondent's concern about making a profit at the time of the layoffs and reductions at these particular locations was realistic in light of what subsequently happened. District Operating Manager Ray Harris gave a clear and coherent explanation of how Respondent closely watches its sales and expense figures on at least a weekly basis, and sometimes daily, in order to meet the Company's profit expectations. I found his testimony to be a convincing and credible explanation of Respondent's actions in making the layoffs and reduc- tions in working hours at the Fullerton, Norwalk, and Ca- noga Park facilities. After considering all of the foregoing, I find that the preponderance of the evidence does not establish that Re- spondent laid off employees or reduced the working hours of certain employees at the Fullerton, Norwalk, and Canoga Park auto service centers in violation of the Act. Accord- ingly, I shall dismiss the 8(a)(1) and (3) allegations of the complaint pertaining to those matters. 54 3. The warning notices to Snow, Matheny, and Villanueva On Thursday, January 22, 1976, Respondent issued cor- rective interviews, or what are more commonly referred to as warning notices, to Fullerton employees Snow, Mathe- ny, and Villanueva. Warnings were also prepared for em- ployees James and Negron, but they were not issued to them, according to Auto Service Manager Ellis, after the heated discussion with the first three employees. There is no dispute on the fact that Snow did work on an automobile during his nonworking time in the parking area near the Fullerton auto service center. However, the inci- dent occurred about 4 weeks prior to the time that the corrective interview was given. Snow credibly testified that he performed emergency work on the brakes of his parents' car for approximately 15 minutes. Snow was told by mes- senger from Ellis to hurry up or security would come over there and fire him. Snow was also told separately by Zie- gler to "make it as quick as possible" after Snow explained to Ziegler the type of work he was doing. Nothing further was said to him until the corrective interview weeks later. Snow testified, without contradiction, to specific exam- ples where others had worked on cars in the parking lot without incident. One such incident involved Ellis' per- forming minor repairs on Ziegler's car and another inci- 54 An interesting theory is advanced in counsel for the General Counsel's brief that Respondent "was conferring a benefit on its employees" by not reducing its payroll prior to the representation elections and then "Respon- dent withdrew the benefit previously conferred" when it made the layoffs and reductions after the elecLions. That allegation of a withdrawal of a dent involved an employee working on his car for 3 days directly in front of the automotive service center. Thus, I conclude that the Company's rule was disparately applied to Snow in giving him a corrective interview. Furthermore, I also credit Snow's testimony that he was given permission by Ellis to take a longer lunch period so that Snow could go home to lunch. As set forth previously, Ellis gave conflicting testimony as to whether he had ever discussed with Snow his longer lunch periods. Snow im- pressed me as being a truthful witness, and I accept his testimony that he had been taking longer lunch periods with permission from Ellis since Snow began working at Fullerton. I also find credible Snow's testimony that during the discussion of the corrective interviews Matheny said: "I think this is nothing but punishment and harassment for us voting the union in," to which Ziegler replied: "Well, you brought it on yourselves." It is significant that Store Oper- ating Manager Ziegler did not deny making that statement. I recognize that Matheny did not testify to Ziegler's having made the statement, but in view of the fact that Ziegler did not deny making the statment and in view of the fact that Snow impressed me as a truthful witness, I find that Ziegler did make the statement. I further find that Ziegler's state- ment reveals the discriminatory purpose which motivated the issuance of the corrective interviews to Snow, Matheny, and Villanueva. Both Matheny and Villanueva, who each have worked about 6 years for Respondent at Fullerton, denied leaving debris on the floor. Matheny was known to have been the one who came up with the idea of assigning areas of the shop to employees to establish responsibility for safety and cleanliness. Matheny also explained why the water was left on the floor for 15 minutes; the fact that Ellis had jacked up another car directly behind the one on which Matheny was working at that time. The Board has recently reiterated in Herb Arthur, Inc. d/b/a Custom Carpet Installations, 225 NLRB 1036, 1037 (1976): The critical question in determining whether a viola- tion of Section 8(a)(3) has occurred is whether the em- ployer has encouraged or discouraged membership in a labor organization by its discriminatory action. It is well settled that a specific antiunion purpose need not be proved where a natural consequence of an employ- er's action is such encouragement or discouragement. After considering all of the foregoing, I conclude that Respondent discriminatorily issued the corrective inter- views, or warning notices, to Snow, Matheny, and Villan- ueva on January 22, 1976, because of its employees' union activities and to discourage membership in the Union, as is particularly revealed by Ziegler's statement: "You brought it on yourselves." Accordingly, I find that Respondent vio- lated Section 8(aXI) and (3) of the Act in issuing those corrective interviews. benefit was not set forth in the complaint, which was amended both before and during the heanng, and therefore, I do not think that it can be fairly said that Respondent had notice of such an allegation or that the theory was fully litigated. 49 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The 1975 wage plan for the Los Angeles area stores The evidence is undisputed that Respondent has a past practice of conducting periodic wage surveys in the greater Los Angeles area and then implementing new wage plans based on those comprehensive surveys. This practice began at least as early as 1973 and was continued in 1974 and in 1975. In fact, in the year 1974 there were two such wage plans put into effect by Respondent in the greater Los Angeles geographical area. The wage plan in issue in this proceeding is the one which was put into effect on October 2, 1975. That wage plan replaced one that had been in effect for almost a year since the prior plan was implement- ed in November 1974. The 1975 wage plan did result in wage increases for those employees who were below the minimum provided for in the new wage scale. The 1975 wage plan was put into effect for all employees in the 16 stores of Respondent in the Los Angeles area except for those employees who were paid on a commission basis and for the employees at the auto service center at the Fullerton store. The General Counsel contends that Respondent violated Section 8(a)(1) of the Act by suspending scheduled wage increases for employees at the Fullerton facility because the employees had selected the Union as their collective- bargaining representative in the election held on September 5, 1975. The General Counsel further coatends that Re- spondent granted wage increases in October 1975 to em- ployees at Norwalk, Santa Ana, Huntington Beach, Eagle Rock, Rosemead, and Canoga Park in order to induce them to refuse to support the Union. As to the latter allegations involving wage increases at the six facilities, I find that those allegations lack merit because Respondent was following its past practice in con- ducting area wage surveys and implementing an areawide wage plan applicable to all of its stores in the Los Angeles area. Moreover, at the time of implementation of the 1975 wage plan, there were representation petitions pending at only two out of the six stores. Those two stores were Nor- walk and Santa Ana. Respondent did not treat those two stores any differently and instead proceeded in accord with its past practice of areawide effectiveness of the 1975 wage plan. A different question is presented with regard to the Gen- eral Counsel's contention that Respondent withheld wage increases from the Fullerton auto service employees be- cause they had voted for the Union. It is clear from District Operating Manager Harris' testimony that the wage survey and wage plan were being worked on by him as early as August 1975 as well as in September 1975. As noted above, it is also clear that Respondent's past practice was area- wide implementation of its wage plans. However, the Union won the election among the employees at the Fuller- ton auto service center on September 5, 1975, and was later certified as the collective-bargaining representative. It is not clear from Bennett's testimony as to just when negotia- tions began with the Union. He could not recall other than to estimate that "it was within the months, I would say, that we finally met face to face and got going on it." It thus appears that the parties were not in contract negotiations as of October 2, 1975. Bennett was candid in saying that he wanted to negotiate with the Union from what the pay rates were as of the time of the election on September 5, 1975, "rather than from some higher figure." In Liberty Telephone & Communications, Inc., and Century Telephone Enterprises, Inc., 204 NLRB 317, 318 (1973), the Board held: The Administrative Law Judge's view that any other course than that taken by Respondents would have subjected them to unfair labor practices is in error. No violations of the Act can normally result where an em- ployer in good faith consults the bargaining representa- tive before taking action on such matters, even though a bona fide impasse in negotiations subsequently ren- ders unilateral action essential. [Footnote Omitted.] It is clear, therefore, that under the principles just discussed, the cancellation of the wage increase to the unit employees after they had selected the Union as their exclusive bargaining representative without con- sulting the Union or affording it an opportunity to ne- gotiate constituted a change in their working condi- tions. By effecting such change without prior consulta- tion with the certified bargaining representative of the employees, Respondents violated Section 8(a)(5) of the Act and also interfered with the employees' right to have their representative consulted about changes in their conditions of employment in violation of Section 8(aX 1) of the Act. By their conduct Respondents addi- tionally discriminated in regard to the employees' terms and conditions of employment, thereby discouraging membership in the Union in violation of Section 8(aX3) of the Act. It is significant that the Board found in Liberty Telephone that the cancellation of the wage increase to the employees in the unit who had voted for union representation violated Section 8(aXI) and (3) as well as Section 8(a)(5). In accord with the Liberty Telephone holding are the earlier decisions of the Board in United Aircraft Corporation, Hamilton Stan- dard Division (Boron Filament Plant), 199 NLRB 658 (1972), where the withholding of a scheduled wage increase from employees who had selected a union as their collec- tive-bargaining representative was found to have violated Section 8(a)(1) and (3) as well as Section 8(aX5), and also General Motors Acceptance Corporation, 196 NLRB 137 (1972), where the withholding of merit increases was found to be a violation of Section 8(a)(1) independent of the 8(a)(5) violation. There is no 8(a)(5) allegation in the complaint in this proceeding, and therefore, the question of whether the withholding of the implementation of the wage plan at Fullerton was a unilateral change in the terms and condi- tions of employment of those unit employees is not before us. Cf. Concord Docu-Prep, Inc., 207 NLRB 981, 986-987 (1973). In Florida Steel Corporation, 220 NLRB 1201 (1975), the Board found violations of Section 8(a)(1) and (3) of the Act based on the company's refusal to institute a new quarterly wage review policy and denial of wage increases and relat- ed benefits. In its rationale the Board made reference not just to the situation where a Board election was pending at the time, but also to a situation where the employees "have 50 MONTGOMERY WARD & CO. chosen a union as their bargaining representative." At 1203 therein, the Board held in Florida Steel. The conclusion is inescapable that the benefits at issue herein were withheld from the Indiantown plant employees because of a pending representation pro- ceeding in which the employees voted for the Union as their collective-bargaining representative in the second election held on May 30, 1974, in Case 12-RC-4461. In accord with Respondent's admitted policy, it therefore withheld these benefits even though by established practice wages were annually reviewed and increases granted at each plant, and improved benefits were im- plemented at the same time at all plants. The Board and courts have long held that an em- ployer withholding pay raises and/or benefits from em- ployees who are awaiting the holding of a Board elec- tion, or have chosen a union as their bargaining repre- sentative, has violated the Act if the employees other- wise would have been granted the pay raises and/or benefits in the normal course of the employer's busi- ness. '0 10 Dan Howard Mfg. Co. and Dan Howard Sportswear, Inc., 158 NLRB 805 (1966); McCormick Longmeadow Stone Co., Inc., 158 NLRB 1237 (1966); Armstrong Cork Companv v. N.LR.B., 211 F.2d 843 (C.A. 5, 1954); N.L.R.B. v. Dothan Eagle, Inc., a subsidiary of Thomson News- papers 434 F.2d 93 (C.A. 5, 1970); Liberty Telephone & Communications, Inc. and Century, Telephone Enterprises, Inc., 204 NLRB 317 (1973). See also Russell-Newrman Manufacturing Co., Inc. v. N.LR.B., 406 F.2d 1280 (C.A. 5. 1969). enfg. 167 NLRB 1112 (1967). where the court in a two-plant context agreed with an 8(aX3) violation based upon disparate treatment between represented and unrepresented employees designed to induce an abandonment of the union. In following the Board precedents in Liberty Telephone, United Aircraft, General Motors, and Florida Steel, supra, I find that Respondent violated Section 8(aXl1) of the Act on October 2, 1975, when it failed to make its 1975 wage plan applicable to the employees in the auto service center at its Fullerton facility. I further find that Respondent failed to do so because the auto service center employees at Fuller- ton voted in favor of union representation in the Board- conducted election on September 5, 1975, and that the 1975 wage plan would have been made effective on Octo- ber 2, 1975, for those employees but for their vote in favor of the Union. I also find, in accordance with the above-cited Board precedents, that the fact that the employees had selected the Union as their collective-bargaining representative does not afford Respondent a defense for the withholding of the new wage plan from the Fullerton employees. Final- ly, I find that the evidence does not establish that negotia- tions for a collective-bargaining agreement covering the auto service center employees at Fullerton had begun prior to October 2, 1975, or that Respondent and the Union had negotiated with regard to that subject at that point in time. Therefore, there is no defense available to Respondent that the Union objected to the implementation of the 1975 wage plan at Fullerton, or that the subject was then currently being negotiated with the Union prior to October 2, 1975. Instead, I conclude that Bennett candidly disclosed that the reason for not implementing the 1975 wage plan at Fullerton was to afford him the advantage of beginning negotiations with the Union at the lower pay rates which were in effect at the time of the election, rather than the higher figures in the new plan. 5. The meetings at Eagle Rock Meetings were held by Respondent for the employees of the Eagle Rock auto service center at two locations. One group of meetings was held at the Eagle Rock facility and another meeting was held at Van de Kamp's Restaurant in the San Fernando Valley. Turning first to one meeting held at the Eagle Rock facil- ity, I have considered the testimony of mechanic's helper McKay and Store Manager Matheny who were the only witnesses who gave testimony regarding that meeting. I find no violation of the Act in the account given by McKay, but he impressed me as being a truthful witness who was attempting to accurately relate these events and I have credited his version of the meeting. He related that Store Manager Matheny told the employees that the Union was no good; that they were not going to do anything for the Fullerton store; that they took bribes; and that they were corrupt. I find these statements to be expressions of opinion by Matheny and in this context to be protected by the free speech provisions of Section 8(c) of the Act. Then Matheny described his account of what had taken place at the Fullerton store. However, by telling the em- ployees at Eagle Rock that five or six employees at Fuller- ton had quit work or been laid off because they were not making enough money or did not like the working condi- tions there, Matheny did not threaten cutbacks in hours, denial of promotions, or other reprisals at Eagle Rock. Thus, the evidence does not establish what the General Counsel alleges in the complaint to be violations at the Eagle Rock meetings. In addition, the General Counsel did not allege in the complaint, as amended, both before and during the hear- ing, that the statements of Matheny concerning the con- tract negotiations at Fullerton conveyed to employees at Eagle Rock the futility of selecting a collective-bargaining representative. Similar allegations were made with regard to the leaflet at Fullerton and speeches at Norwalk and Canoga Park, but not with regard to Matheny's statements at Eagle Rock. Turning now to the meeting held at Van de Kamp's Restaurant, I again find McKay's account to be the credi- ble version, for the reasons previously stated, rather than the accounts related by Matheny and Bennett. At the Van de Kamp's meeting, I find that Matheny told the employ- ees that, if they voted in the Union, there would not be promotions from within and that there would be cuts in their hours. Accordingly, I further find that Respondent thereby violated Section 8(aXI) of the Act, about the end of December 1975 or the first of January 1976, by threaten- ing employees with denial of promotions and cutbacks in working hours if the employees selected the Union as their collective-bargaining representative. Both Matheny and Bennett in their versions attributed the change in the promotion policy to the mechanic's posi- tion to the high rates of pay and inflexible job classifica- tions with which the Union would attempt to saddle the employer. However, no objective basis was shown to sup- 51 DECISIONS OF NATIONAL LABOR RELATIONS BOARD port that assumption. The Board commented with respect to a similar matter in Yankee Trader, Inc., d/b/a Treadway Inn, 184 NLRB 715 (1970): The record does not establish that Van der Woude had any way of knowing what demands the Union might make or how the Respondent might attempt to com- pensate for any increased expenses arising from union demands, and his prediction was purely speculative. As the Supreme Court stated in N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 618 (1969): [An employer's prediction about the conse- quences of unionization] must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control . . . in case of unionization. Since Van der Woude's prediction was not based on "objective fact ... as to demonstrably probable conse- quences," it was violative of Section 8(a)( ). Nevertheless, I have found the account given by McKay to be the credible version of the statements made at the meeting, and I predicate the findings of violations of Sec- tion 8(a)(1) on his testimony. 6. The meetings and conversations involving Norwalk employees The reductions in the working hours of certain employ- ees at the Norwalk auto service center has been previously discussed in connection with the layoffs and reductions at Fullerton and Canoga Park. However, an alleged conversa- tion pertaining to that reduction in hours is significant insofar as it has a bearing on the credibility of two of the General Counsel's witnesses. The conversation is the one in which Auto Service Manager Elgie allegedly told employ- ees Cliff and Kemp that the employees should have known that the Company was going to do something like this - the reduction in working hours - if the employees voted in the Union. The sequence in which that testimony was de- veloped on the record has been shown earlier with regard to the events at Norwalk. Without repeating that matter in detail, it should be noted that Cliff positively answered "no" to two specific questions on direct examination per- taining to that specific subject, and then surprisingly relat- ed the entire alleged incident. On cross-examination, he changed the sequence of the conversations from his last conversation with Elgie to his first conversation. Kemp also had difficulty relating that incident. As has been previously set forth regarding the events at Norwalk, Kemp positively answered "no" to two specific questions regarding the incident. Finally, after a third question, Kemp related the incident. On cross-examination, Kemp acknowledged that there was no mention of this incident in the affidavit which he gave to the Board agent just 2 weeks after the incident allegedly occurred. Elgie's statement, if it was made, cannot be considered some obscure point which would have been unlikely to have been recalled at the time of the giving of the affidavit. The remark related directly to the reduction in hours of the employees, one of whom was Kemp. The explanation offered that he spent more time with the two hearing attorneys for the General Counsel than he did with the Board agent investigating the charge is not convincing in these circumstances. In view of the fore- going, I have decided not to rely on the testimony given by Cliff and Kemp with regard to that incident and the other matters to which they testified as I do not credit their testimony. The testimony given by Terry Schweizer that he was questioned by Auto Service Manager Elgie prior to the election as to what Schweizer thought about unions is un- denied. On that basis and on the basis that Schweizer also impressed me with his demeanor as a credible witness, I find that Elgie interrogated Schweizer concerning his union sympathies and activities. The Board has recently adopted the findings and conclusions of an Administrative Law Judge who found a similar question asked of employees to be violative of Section 8(a)(1) of the Act. Blue Cross-Blue Shield of Alabarma, 225 NLRB 1217, 1220 (1976). Accord- ingly, I conclude that Respondent violated Section 8(a)(l) of the Act by Elgie's interrogation of Schweizer. I also credit Schweizer's testimony pertaining to state- ments made by Labor Relations Manager Bennett at Sam- bo's Restaurant and at the pizza parlor. These will be dis- cussed later with the other allegations made by the General Counsel regarding statements made concerning the futility of employees selecting the Union to represent them. During the period from March 1975 through the Sunday before the election among the Norwalk employees, which would have been Sunday, January 4, 1976, Stephen McAf- fee was placed "in charge" of the shop on a regularly scheduled basis during the evening hours and on Sundays. He wore a uniform with "Assistant Service Manager" on it and handed out the work assignments to employees. He called in employees to work as needed and had employees work beyond their scheduled hours for compensatory time as needed. He sent an employee home from work and he was asked for his opinion of the performance of employees by the service manager. After one unfavorable opinion of an employee's performance and ability to perform the job by McAffee, the employee was laid off from work by Re- spondent. In view of the foregoing, I find that McAffee was a supervisor within the meaning of the Act during the peri- od from March 1975 through January 4, 1976. Because the conversations to which he testified occurred during that period when he was a supervisor, I find no violation of the Act with respect to those conversations. The General Counsel did not allege in the complaint, as amended, that Respondent's change in policy to commence furnishing uniforms to employees was an unfair labor prac- tice. In addition, the evidence does not support the General Counsel's allegation that Respondent suspended scheduled wage increases in January 1976 for Norwalk employees. It was not shown that any employee who was entitled to receive a wage increase was denied such wage increase. In view of all of the foregoing, I shall dismiss the allegations in the complaint with regard to the Nonvalk employees ex- cept for those based on the testimony of Terry Schweizer concerning the interrogation by Elgie and the statements made by Bennett at Sambo's and the pizza parlor. 52 MONTGOMERY WARD & CO. 7. The meetings and conversations involving Canoga Park employees Some of the testimony given by the employee witnesses from the Canoga Park auto service center was not denied or controverted while other portions of their testimony were specifically denied or related in a different manner or different terminology. The accounts of the conversations and meetings with the Canoga Park employees and man- agement have already been fully set forth. I found the testimony given by the Canoga Park employees to be credi- ble, bearing in mind the Board's guidance that ". . . it is abundantly clear that the ultimate choice between conflict- ing testimony also rests on the weight of the evidence, established or admitted facts, inherent probabilities, rea- sonable inferences drawn from the record, and, in sum, all of the other variant factors which the trier of fact must consider in resolving credibility. See, e.g., Retail, Wholesale and Department Store Union, AFL-CIO [Coca Cola Bottling Works, Inc.] v. N.LR.B., 466 F.2d 380, 386-387 (C.A.D.C., 1972)." The foregoing guidance from the Board, which has been applied in arriving at the credibility resolutions in this proceeding, is set forth in the Board's decision in North- ridge Knitting Mills, Inc., 223 NLRB 230, 235 (1976). Based upon the credited testimony of Ronald Coe, I find that Auto Service Manager Bob Ratliff in March 1976 told the employees that the Company could drop payment of incentive pay to employees if the Company wanted to do so once a contract was negotiated. I further find that Re- spondent by such conduct threatened its employees with loss of their incentive pay if the employees selected the Union as their collective-bargaining representative, partic- ularly in view of the fact that Ratliff told the employees this during the period prior to the time that a representation election was to be held. I find this to be a violation of Section 8(a)(l) of the Act. Also based upon the testimony by Coe, I find that Ratliff interrogated him a few days before the election in March 1976 as to what he thought about the Union. I find such interrogation to be a violation of Section 8(a)(1) of the Act. Blue Cross-Blue Shield of A labama, supra. I also find, based on Coe's testimony, that Respondent violated Section 8(a)(1) when Ratliff attributed the layoff of employees to the fact that the employees had voted in the Union. Based upon the credited testimony of Coe and Breskin, I find that Respondent violated Section 8(a)(l) of the Act by creating the impression of surveillance of the employees' union activities when Ratliff told employees that Respon- dent had a list of names of people who had voted for the Union and those against, and also by stating that Respon- dent knew that Ludwyck had voted for the Union and considered two others to be "borderline." Jeff Sigafoose testified credibly that Ratliff questioned employees about a week before the representation election as to what the employees thought about the Union. I find such interrogation to be violative of Section 8(a)(1) of the Act. Blue Cross-Blue Shield of Alabama, supra. Elizabeth Duey gave credible testimony that Auto Ac- cessories Manager Sheets referred to her as the biggest union sympathizer at the meeting at Shakey's Pizza Parlor on the night before the election. By indicating that he knew of her union activities as compared to those of other em- ployees, I find that Respondent violated Section 8(aX)(1) of the Act by creating the impression among its employees of surveillance of their union activities. Based on the testimony of Jeff Sigafoose and Elizabeth Duey concerning the statements made to Duey on the day of the election by Store Manager Harris, I find that Harris indicated that a vote for the Union would be taken by Respondent as a reflection on Harris, thereby implying that Respondent would take some adverse action if em- ployees voted for the Union. I conclude such a statement to be coercive to employees, particularly in view of the timing, the day of the election, and to be a violation of Section 8(a)(1) of the Act in these circumstances. I find that Respondent engaged in interrogation of em- ployees concerning their union sympathies and concerning how employees had voted in the election when Ratliff questioned Duey regarding these matters after the election was over on March 23, 1976. 1 find such interrogation based on Duey's testimony to be in violation of Section 8(a)( ) of the Act. Based upon the credited testimony of Michael Hensey, I find that Respondent engaged in conduct violative of Sec- tion 8(a)(Xl1) of the Act when Auto Service Manager Ron Feola in January 1976 interrogated Hensey regarding his union activities; misrepresented to Hensey that Union Or- ganizer Henderson had become belligerent, caused a com- motion, carried a gun, and had to be thrown off the prem- ises at the Eagle Rock election, and told Hensey that Re- spondent was pretty sure that they knew the employees who supported the Union at Eagle Rock and that the store would probably get rid of them. Also based on the testimony of Hensey, I find that Re- spondent violated Section 8(a)(1) of the Act when Ratliff threatened the loss of insurance benefits, incentive pay, and lower wages if the employees selected the Union as their collective-bargaining representative. Furthermore, I find that Respondent engaged in interrogation of Hensey regarding his union activities and created the impression of surveillance of the union activities of employee Ludwyck in violation of Section 8(aXl1) of the Act when Ratliff ques- tioned Hensey regarding being contacted by the Union, stating that Ratliff knew that Ludwyck had contacted Hen- sey regarding the Union. Hensey also credibly testified that Ratliff questioned him a day or two after the election as to how Hensey had voted in the election and indicated that he would find out within a few days. I find this to be coercive interrogation in viola- tion of Section 8(a)(1) of the Act. In addition, Hensey testi- fied that during the period after the election Ratliff indicat- ed agreement with Hensey's statement that he would not be surprised if the Company tried to get even with the employees by getting rid of them. Ratliff made reference to the book which he was carrying with him at the time. While Ratliff indicated that this was just a joke which provoked laughter, Hensey testified to the incident in seriousness and did not testify that it was a joke or that anyone laughed. I find that this conduct was a threat of layoff or reprisal to employees for having just recently selected the Union and violated Section 8(a)(1) of the Act. 53 DECISIONS OF NA'rIONAL LABOR RELATIONS BOARD I further find that Respondent violated Section 8(a)(X) of the Act when Harris interrogated Hensey on the day of the election as to how Hensey was going to vote and by telling Hensey that it was a direct reflection on Harris. I also find that Feola interrogated Hensey on the day of the election by questioning him as to how he was going to vote in the election that day. I find that Respondent thereby violated Section 8(a)(1) of the Act. Based upon the credited testimony of Breskin, I find that Respondent violated Section 8(a)(1) of the Act when Rat- liff interrogated Breskin as to how he felt about the Union on March 15, 1976; told him that the Company would not grant the mechanics a wage increase if they selected the Union to represent them, thereby indicating that it was futile to vote for the Union; and by threatening Breskin with loss of the incentive pay program if the employees voted in the Union. I also find that Respondent violated Section 8(aXl) of the Act based on Ludwyck's testimony that Ratliff threat- ened the loss of incentive pay and group insurance cover- age if the employees selected the Union, and when Ratliff questioned Ludwyck as to what he thought about the Union and what he thought the Union could do for him. I do not find the remark cautioning Ludwyck not to talk with a parts employee to be a violation. Based upon the credited testimony of Wilhoyt, I find that Respondent violated Section 8(a)(1) of the Act when Harris questioned Wilhoyt as to why he wanted the Union in; when Ratliff created the impression of surveillance of em- ployees' union activities by saying that he knew that Ludwyck was behind the dissention which was causing the interest in the Union; and when Ratliff questioned Wilhoyt as to how he had voted in the election, again creating the impression of surveillance of employees' union activities by stating that he knew that Ludwyck was the one who had gotten the Union in the shop. With regard to the allegation concerning the grant of wage increases to employees during the period of January through March 1976, 1 find that the evidence is insufficient to sustain that allegation. The counsel for the General Counsel points in her brief to the "unusual number" of raises. However, the evidence does not establish that these increases were not merited by the employees under the 1975 wage plan or for other nondiscriminatory reasons. Accordingly, I shall dismiss that allegation of the com- plaint. 8. The allegations regarding the futility of employees selecting the Union to represent them Based upon the credited testimony of Coe, Duey, Hen- sey, Wilhoyt, and McCartney, I find that Labor Relations Manager Bennett told the Canoga Park employees at the breakfast meeting held in March 1976, 1 or 2 weeks prior to the representation election, that even if the employees se- lected the Union as their collective-bargaining representa- tive Respondent would not change its benefits program; that the employees would not receive any increase in wages; and that wages at the Fullerton auto service center were frozen. Based upon the credited testimony of Schweizer, I find that Labor Relations Manager Bennett told the Norwalk employees at the meetings in December 1975 or January 1976 at Sambo's and at the pizza parlor that Respondent's benefits were the same for union and nonunion stores; that this was a national policy; and that benefits would not change whether Norwalk was a union or nonunion store. I further find that Bennett told the employees that the wages in a nonunion store of Respondent's were always at least equal to those in a union store of Respondent's. I further find that Bennett admitted in his testimony that he told the Norwalk employees at the meeting at the pizza parlor that the "wage scales" had been frozen at Fullerton. It is also undisputed that on August 29, 1975, Respon- dent distributed a three-page memo to all of the auto ser- vice employees at its Fullerton facility. Pertinent portions of that memo have already been set forth. In the Board's decision, Montgomery Ward & Co., Inc., 222 NLRB 965 (1976), the Board adopted the findings and conclusions of the Administrative Law Judge in that case where similar statements had been made by another labor relations manager in a different area. At 968 therein, the Administrative Law Judge stated: It matters not how Feinberg's repeated statements to the employees be described - as advance announce- ment that the Respondent would refuse to bargain sin- cerely with the union of their choice, as warnings that their desire to bargain collectively would be frustrated, or as assurance that the Respondent would unilaterally grant to them whatever benefits they could possibly achieve by selecting the Union as their bargaining agent. I find that in every talk he gave to the many groups of employees, during the weeks of February 10 and February 28, he unlawfully coerced them in their freedom to engage in concerted activities and thereby violated Section 8(aXl) of the Act in every instance. In another Board decision, Montgomery Ward & Co., Incorporated, 225 NLRB 112 (1976), the Board again adopted the findings and conclusions of the Administrative Law Judge in that case where similar statements had been made by another assistant labor relations manager and had been found to be violative of Section 8(aXl) of the Act. At 1 17 therein, the Administrative Law Judge stated: I conclude that Brousard in effect told the employees that they automatically would receive the same benefits as the unionized Posen operation if they did not select the Union, whereas if they selected the Union, albeit the employer would go through the motions of negotia- tion of a new contract, any such contract would inevit- ably obtain the same predetermined nationwide bene- fits and wage rates as was granted at Posen. Even under Brousard's version the message was clear, a union vic- tory would be a futility, and that in no event would union representation result in improvements of working conditions. In North Electric Company, 225 NLRB 1114, 1116 (1976), the Board found that the employer in that case violated Section 8(a)(1) of the Act by impliedly threatening the em- ployees with loss of their scheduled wage increase where the employer, among other things, told the employees: 54 MONTGOMERY WARD & CO. "that all existing benefits become negotiable, that the Re- spondent did not have to agree to anything and would start bargaining with a blank sheet of paper, that negotiations, especially first-time negotiations, take a long time, some- times over a year, and that during such time all wages would be frozen, that no one could say how long such a "freeze" would last, that the law required such a freeze." The Board stated in footnote 6 to the above quotation that as a "matter of law" a freeze is not required and cited: Russell Stover Candies, Inc., 221 NLRB 441 (1975); Gerbes Super Market, Inc., 213 NLRB 803 (1974), and The Gates Rubber Company, 182 NLRB 95 (1970). After considering all of the foregoing, I find that Respon- dent violated Section 8(a)(1) of the Act by conveying to employees in the speeches made by Bennett to the Norwalk and Canoga Park employees and in the document distrib- uted on August 29, 1975, to the Fullerton employees that it would be futile for them to select the Union as their collec- tive-bargaining representative. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations de- scribed 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 bur- dening and obstructing commerce and the free flow of commerce. Upon the basis of the foregoing findings of fact and upon the entire record, I make the following: CONCLUSIONS OF LAW I. Montgomery Ward & Co., Incorporated, is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Automotive Workers Local Union 495, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organi- zation within the meaning of Section 2(5) of the Act. 3. John Caudill was a supervisor within the meaning of Section 2(11) of the Act at the time of his termination by Respondent on August 9, 1975. 4. Stephen McAffee was a supervisor within the mean- ing of Section 2(11) of the Act between March 1975 and Sunday, January 4, 1976. 5. By issuing corrective interviews to Bruce Snow, Dale Matheny, and Jose Villanueva on January 22, 1976, be- cause of the union activities of its employees and to dis- courage membership in the Union, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 6. By failing on October 2, 1975, to implement and to make applicable to its auto service center employees at Fullerton, Respondent's 1975 wage plan; by threatening employees with denial of promotion, cutbacks in working hours, loss of incentive pay, loss of insurance benefits, low- er wages, and to get rid of employees if employees selected the Union as their collective-bargaining representative; by interrogating employees as to what the employees thought about unions, the employees' union sympathies and union activities, what employees thought the Union could do for the employees, why the employees wanted a union as their collective-bargaining representative, how employees in- tended to vote in a representation election, and how em- ployees had voted in a representation election; by creating among employees the impression of surveillance of the em- ployees' union activities; by telling employees that a vote for union representation would be taken by Respondent as a personal affront to the manager or a reflection on the manager; by attributing the layoff of employees to the fact that the employees had voted in the Union to represent them; by misrepresenting to employees that a union orga- nizer had become belligerent, caused a commotion, carried a gun, and had to be thrown off of Respondent's premises at a Board-conducted election, and by conveying to em- ployees that it would be futile for them to select a union as their collective-bargaining representative, Respondent en- gaged in unfair labor practices within the meaning of Sec- tion 8(a)(1) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that it be ordered to cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act. Having found that Respondent failed to implement and to make applicable to its auto service center employees at Fullerton, Respondent's 1975 wage plan, which it imple- mented and made applicable to all of its other greater Los Angeles geographical area locations, I shall recommend that Respondent make the employees whole at the Fuller- ton auto service center for any loss of earnings which they suffered due to Respondent's failure to make the 1975 wage plan applicable to them. Backpay is to be computed on a quarterly basis in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and with interest thereon as prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). In view of the nature of Respondent's unfair labor prac- tices found herein, I shall recommend that Respondent cease and desist from infringing in any other manner on the rights of its employees guaranteed by Section 7 of the Act. Counsel for the General Counsel requests in her brief that Respondent be ordered to post notices to employees at the 16 stores of Respondent in the greater Los Angeles area. I find that the posting of the notices at the four loca- tions where the unfair labor practices occurred is appropri- ate in these circumstances, and I shall therefore deny the request of the General Counsel. [Recommended Order omitted from publication.] 55