Montgomery Ward & Co., Inc.

MONTGOMERY WARD & CO., INC. Montgomery Ward & Co., Incorporated and,Retail Clerks Union Local No. 31, Retail Clerks Interna- tional Association, AFL-CIO. Cases 8-CA-6150 and 8-RC-8000 June 14, 1972 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On October 6, 1971, Trial Examiner John P. von Rohr issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions only to the extent consistent herewith, and to adopt his recommended Order as modified herein. The Trial Examiner found, and we agree, that Respondent engaged in certain coercive interroga- tions and the granting of wage increases in violation of Section 8(a)(1) of the Act. We also agree with the Trial Examiner's conclusion that Respondent dis- charged employee David Wallace because of his union activity in violation of Section 8(a)(3). These unfair labor practices also constitute meritorious objections to the election conducted on December 4, 1970, which resulted in a vote unfavorable to the Union. However, the Trial Examiner recommended that the election be set aside and the representation proceedings be dismissed in view of his conclusion that Respondent violated Section 8(a)(5) when it refused to bargain on October 13, 1970, a date he found the Union possessed a majority of valid authorization cards. In fashioning a remedy, the Trial Examiner concluded that Respondent's violations of the Act were so severe and pervasive that the invocation of traditional remedies would afford no guarantee that an election would provide a more accurate index of I The Trial Examiner found October 13 to have been the critical date, and there are no exceptions to this finding Although the Union secured more cards after October 13, the Respondent's total payroll increased, and the General Counsel has not succeeded in establishing that the Union enjoyed a majority on any date after October 13 2 Chairman Miller agrees that the cards of Michaels and Swetlic should not be counted and that the Union never obtained a valid majority However, the Chairman is of the view that numerous other cards relied on do not evince a reliable measure of employee desires because of conduct in solicitation that amounted to misrepresentation of the purpose of the card, 519 employee sentiment than the authorization cards executed by a majority of employees, and concluded that a bargaining order was necessary and appropri- ate, citing N.L.R.B. v. Gissel Packing Company, Inc., 395 U.S. 575. We do not agree with the Trial Examiner's finding of the majority status of the Union based on authorization cards and, conse- quently, do not adopt his recommendation to issue a bargaining order. The Trial Examiner found there were 190 employ- ees in the appropriate unit on October 13, 1970, the critical date, and at that time the Union possessed 97 valid authorization cards, enough for a majority. In making his count, the Trial Examiner purported to discount all cards signed after October 13, but mistakenly included the card of Michaels which was dated October 15.1 Properly, we must discount the card of Michaels. In finding the Union did not possess a majority, we also discount the card of Swetlic, an employee who was told to sign his card and return it to Hiatt, a supervisor. Swetlic did return his signed card to Supervisor Hiatt. Under the circumstances, Swetlic's card is tainted by supervisory influence and cannot be used to establish the Union as bargaining representative. Discounting the cards of Michaels and Swetlic, and without passing on the validity of other cards submitted by the Union,2 we conclude that the Union was never the exclusive representative of Respondent's employees and that Respondent did not violate Section 8(a)(5) in refusing to bargain. We will, accordingly, dismiss the 8(a)(5) portions of the complaint. However, in order to adequately protect the employees' Section 7 rights, we will order that the first election be set aside and that a second election be directed when circumstances permit the free choice of a bargaining representative. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner, as modified below, and hereby orders that Respondent, Montgomery Ward & Co., Incorporated, Mansfield, Ohio, its officers, agents, successors, and assigns, shall take the i e., the cards of Thomas J Daley, Carol Pollman, and Debra Lamneck The Chairman is also of the opinion that other cards involving solicitation by supervisors are suspect , i e, cards of Efaw, Milligan, Reid, and Daily In this regard, the Chairman would distinguish WKRG-TV, Inc, 190 NLRB No. 34, the case relied on by the Trial Examiner in finding no supervisory influence in securing the above cards . In that case, there had been minimal participation by a lower level supervisor and the supervisor did not himself solicit or receive cards, facts not applicable to the circumstances here See Clay City Beverages, Inc, 176 NLRB 681 197 NLRB No. 90 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD action set forth in the Trial Examiner's recommend- ed Order, as so modified: 1. Delete paragraph 1(a) and substitute the following: "(a) Unlawfully promising or granting wage in- creases for the purpose of undermining the Union." 2. Delete paragraph 1(e). 3. Delete paragraph 2(a) and renumber the following paragraphs accordingly. 4. Substitute the attached notice for the Trial Examiner's. IT .IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges Respondent violated Section 8(a)(5), or any unfair labor practices alleged but not herein found. IT IS HEREBY FURTHER ORDERED that the election conducted on December 4, 1970, be, and it hereby is, set aside, and that Case 8-RC-8000 be remanded to the Regional Director for Region 8 for the purpose of conducting a new election at such time as he deems that circumstances permit the free choice of a bargaining representative. [Direction of Second Election3 omitted from publication.] 3 In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Co, 394 U S. 759 Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 8 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Retail Clerks Union Local No. 31, Retail Clerks Interna- tional Association, AFL-CIO, or in any other labor organization, by discharging, or otherwise discriminating against our employees because of their union activities. WE WILL NOT grant wage increases to keep our employees from joining or supporting the Union. WE WILL NOT interrogate our employees con- cerning their union activities or sympathies. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to join or assist, or to refrain from joining or assisting, any union, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. WE WILL offer David Wallace immediate and full reinstatement to his former job or , if this job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges , and make him whole for any loss of pay suffered as a result of the discrimination against him. MONTGOMERY WARD & CO., INCORPORATED (Employer) Dated By (Representative) (Title) We will notify immediately the above-named indi- vidual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application 'after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 1695 Federal Office Building, 1240 East Ninth Street, Cleveland, Ohio 44199, Telephone 216-522-3715. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN P. voN ROHR, Trial Examiner: Upon a charge filed on December 10, 1970, the General Counsel of the National Labor Relations Board, for the Regional- Director of Region 8 (Cleveland, Ohio) issued a complaint on February 19, 1971, against Montgomery Ward & Co., Incorporated, herein called the Respondent or the Compa- ny, alleging that it had engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, herein called the Act. This case was consolidated with objections filed by the Petitioner (herein the Charging Party) in Case 8-RC-8000. The Respondent filed an answer denying the commission of any unfair labor practices. Pursuant to notice, a hearing was held before Trial Examiner John P. von Rohr in Mansfield, Ohio, on May 18, 19, 20, 21, 25, 26, and 27, 1971. All parties were represented by counsel and were afforded opportunity to adduce evidence, to examine and cross-examine witnesses, and to file briefs. A brief was received from the MONTGOMERY WARD & CO., INC. Respondent on August 9, 1971, and it has been carefully considered. I have also taken note of short memoranda filed by the General Counsel and the Charging Party on the same date. Upon the entire record in the case and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is an Illinois corporation with its principal office in Chicago, Illinois, and is engaged in the retail sale of general merchandise in Mansfield, Ohio, and elsewhere. The Mansfield store, the only facility here involved, annually sells goods and merchandise valued in excess of $500,000 and annually receives goods valued in excess of $50,000 from across state lines. Respondent admits, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Retail Clerks Union Local No. 31, Retail Clerks International Association, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background; The Issues Following an organizational campaign which began on September 28, 1970, by the Retail Clerks Union, a Board- conducted representation election was held on December 4, 1970. Of 187 eligible voters, 182 ballots were cast; 86 were for the Union, 92 were against, and 4 were challenges. The Union filed timely objections to the election and the Regional Director subsequently ordered that a hearing on the objections be consolidated with the unfair labor practice charges involved herein. At issue are allegations that Respondent discharged David Wallace, the employee who initiated the organiza- tional campaign, in violation of Section 8(a)(3) of the Act and that Respondent engaged in various acts and conduct independently violative of Section 8(a)(1) of the Act. It is further alleged that, on and after October 13, 1970, Respondent violated Section 8(a)(5) of the Act by refusing to recognize and bargain with the Union. Under the principle enunciated in N. L. R. B. v. Gissel Packing Compa- ny, 395 U.S. 575, the General Counsel seeks the issuance of a bargaining order herein. 1 It is conceded , and I find, that the appropriate unit consists of all full- time and regular part-time employees employed at Employer's Mansfield, Ohio, retail store and in its Longview warehouse, including the employees of the auto service center, but excluding the employees of the licensed hearing aid department, all department managers, managerial employees , confiden- tial employees, professional employees, guards, and supervisors as defined in the Act 2 All dates refer to the'year 1970 unless otherwise indicated 3 I note that this is also the date utilized by the General Counsel in his brief Furthermore, in view of the demonstrated turnover of employees in 521 B. The Union's Majority Status It is undisputed that on October 13, 1970, Respondent received a letter from the Union dated October 8, 1970, wherein the Union stated that it represented a majority of the employees working at Respondent's Mansfield store and offered to prove its majority status through a card check.' Respondent declined the Union's demand by letter dated October 14, 1970:2 The question of the Union's majority status was thoroughly litigated in the instant hearing. Although the General Counsel introduced a number of union authorization cards which were signed by employees subsequent to October 13, (on the ground that there was a "continuing" demand) I shall consider October 13, 1970, the date on which Respondent received the Union's demand, to be the determinative date insofar as the issue of the Union's majority is concerned.3 According- ly, since Respondent's records reflect, and I find, that a total of 190 employees in the appropriate unit were in Respondent's employ on this date, it is apparent that the Union must have a total of 96 validly designated authorization cards to have achieved majority statUS.4 Turning now to the cards, all cards considered herein were signed on or before October 13. The Respondent concedes in its brief, and I find, that the authorization cards of the following 71 employees are validly designated authorization cards: Conceded Ted Glodowski Shirley Shipley Dean Ditwiler Vivian Perry Richard George Carl Roach Mary Guarino Rose Spognardi Helda Borders Stanley Rickel Ray Goble Jeanne Newton Jim Gertel Ruth Remllong Martha Adkins Nancy Stillwell Roxanne Barnett Charles Shaver John Butterbaugh Doyle Myers Stephen Daugherty Bobby Deskins Russell Hinz Mildred Gore Clifford Hinz Greg Stofer Alice Mandusie Lester Prosser Dorothy Kostoff Helen Steele Judith Boling Lonnie McGhee Raymond Holland Thomas Paynton E. L. Hauk Leslie Wallace Sandra Kinnan Bruce Veal Lucille Kerr Stephen Wolfhope Jeanne Jackson Helen Vogel Donald Harnnger William Waddell Rollin Brewer Luanne Shade Louis Bemiller Doris Zerby Pamela Putnam Viola Warner the unit, this is also the most feasible date to be utilized for the purpose indicated 4 I base my finding concerning the total number of employees as follows. G. C Exh 4 reflects that there were 191 employees on Respondent 's payroll on October 7 Since G C Exh. 5 shows that three employees (Irma Craighead, Jennie Jones, and Yolanda Shopwell) were hired between October 7 and October 13, inclusive, and since G C. Exh 6 shows that four employees (Jotanda Fisher, Ivonne Maury, Caryln Price, and Randy Underwood) were terminated prior to October 13 , the total number of employees on October 13 adds up to 190 522 Geraldine Ruffiner Howard Stone Tony Sell - Brenda Maurer Harry Harris Alice Kepple Charlotte Hotte Robert Killen Janice Hewitt Ernest Barley Michael Spognardi DECISIONS OF NATIONAL LABOR RELATIONS BOARD Joan Dilly Beatrice Sweet Robert Wagner Joseph Toth Cathy Clark Peter Bautz Martin Beegle Patricia Young Eugene Schnider Larry Stony Relying on well-established Board precedent, Respon- dent contends that the cards of certain employees should not be counted as valid because they were solicited and obtained by supervisors.5 The supervisors involved are Jack Kelly, department manager of the tailor shop, and Francis Hiatt, assistant manager of the auto service center. The General Counsel contends that Kelly and Hiatt are "low level" supervisors and that hence the cards which they solicited should not be regarded as tainted. I disagree. Thus, in the representation proceeding (Case 8-RC-8000) the Regional Director in his Decision and Direction of Election stated, "After taking evidence on the issue, the parties stipulated, and I find, that all department managers should be excluded from the unit as supervisory employ- ees." Similarly, and on the same basis, the Regional Director found Francis Hiatt to be a supervisor within the meaning of the, Act. Although I permitted the parties to offer further evidence concerning the supervisory status of Kelly and Hiatt in the instant hearing, I find no persuasive evidence that the Regional Director's finding as aforesaid should be disturbed.6 Accordingly, I find that the cards of the following employees which were obtained either by Kelly or Hiatt are invalid and should not be counted: Helen Boling Elizabeth Hoff Elizabeth Cervenski Hazel Grice Shirley Baker Fred Kohler Angeline Ferrise Marcilyn Spencer Paul Meyer Respondent further contends that the cards of James E. Efron, Jr., Robert Milligan, and James Reid are invalid because they were signed when Hiatt was present. I find no merit to this contention . As indicated hereinafter, the organizational campaign started on September 28, 1970, at which time James Vance, supervisor of the auto service 5 Desiu Products, Inc, 106 NLRB 179, Insular Chemical Corp, 128 NLRB 93, Leas & McVithy, Inc, 155 NLRB 389, Jack and Jill Stores, 178 NLRB 458, Juniata Packing, 182 NLRB 140 6 The transcript of the proceedings in Case 8-RC-8000 was received in evidence as part of the instant record From my independent review of the center, was discharged. In protest of this discharge, the employees in this department engaged in a work stoppage. When employee David Wallace reported to work the same day, the stnking employees spoke in favor of a union and asked that he obtain union authorization cards. Wallace thereupon left the premises and obtained cards from the charging Union. When he returned, he passed them out to the group of striking employees and all the employees present, including Efron, Jr., Milligan, and Reid, signed them at this time. Francis Hiatt, the assistant supervisor, was present in the group when the other employees signed the card and it appears that he, like the others, also spoke in general favor of a union. From the foregoing, I think it hardly can be said that Efron, Jr., Milligan, and Reid signed the cards because they were induced to do so by Hiatt. The Board has found cards signed by employees under similar circumstances to be valid. WKRG-TV, 190 NLRB No. 34. I find the cards of Milligan, Reid, and Efron, Jr. to be valid and they therefore should be counted. Although Respondent challenges the card of Joanne Hyatt as being invalid because a supervisor was allegedly present at a union meeting when she signed it, there is no evidence that a supervisor in fact was present at this meeting and Hyatt testified that she was not aware of any supervisors being present. I find the card of Joanne Hyatt to be valid. The card of Robert R Swetlie, Jr, is also challenged by Respondent. Swetlie was given a card by employee Fred Kohler who told him that the purpose of the card was "to get the union in." Swetlie also asked him to read the card, sign it, and return it to Francis Hiatt. Swethe carried the card in his pocket for 2 or 3 days and then signed it and gave it to Hiatt.7 Under the foregoing circumstances, it is clear that Swetlie's signing of the card was not at the behest of Hiatt. Indeed, the fact that he carried the card around for several days before signing it is indicative that he gave some thought to the matter before making up his own mind. I find the card signed by Swetlie to be valid. Employee Donna Dailey signed a card given to her by employee Helen Steele. She also received a card from Dean Schulte, a supervisor. She did not sign the latter card and also testified that Schulte did not encourage her to sign it. I find Dailey's card to be valid. The remaining cards in dispute are challenged by the Respondent on the ground that misrepresentations as to the purpose of the cards were made to the employees by the card solicitors, viz, representations by the solicitors that the cards would be used only for the purpose of obtaining an election. In this connection, it is clear that the cards in this case are so-called single purpose cards, which on their face authorized the Union to represent the employees who testimony taken therein , I am satisfied that the Regional Director was correct in finding Kelly and Hiatt to be supervisors within the meaning of the Act r Uncontroverted testimony of Swetke MONTGOMERY WARD & CO., INC. signed them.8 In considering the evidence pertinent to the validity of the disputed single purpose cards, I think it well to reiterate the guidelines set forth by the Supreme Court in N.L.R.B v. Gissel Packing Co., Inc, 395 U.S. 575, governing this issue, as follows: In resolving the conflict among the circuits in favor of approving the Board's Cumberland rule, we think it sufficient to point out that employees should be bound by the clear language of what they signed unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature. There is nothing inconsistent in handing an employee a card that says the signer authorizes the union to represent him and then telling him that the card will probably be used first to get an election ... . We cannot agree with the employers here that employees as a rule are too unsophisticated to be bound by what they sign unless expressly told that their act of signing represents something else ... . We agree, however, with the Board's own warnings in Levi Strauss, 172 NLRB No. 57, 68 LRRM 1338, 1341 and n. 7 (1968), that in hearing testimony concerning a card challenge, trial examiners should not neglect their obligation to ensure employee free choice by a too easy mechanical application of the Cumber- land rules. We also accept the observation that employees are more likely than not, many months after a card drive and in response to questions by company counsel, to give testimony damaging to the union, particularly where company officials have previously threatened reprisals for union activity in violation of Sec. 8(a)(1). We therefore reject any rule that requires a probe of an employee's subjective motivations as involving an endless and unreliable inquiry. We nevertheless feel that the trial examiner's findings in General Steel (see fn. 5, supra) represent the limits of the Cumberland rule's application. We emphasize that the Board should be careful to guard against any approach anymore rigid than that in General Steel .... In explaining and reaffirming the Cumberland Shoe doctrine in the context of unambiguous cards, the Board stated "Thus the fact that employees are told in the course of solicitation that an election is contemplated, or that a purpose of the card is to make an election possible, provides in our view insufficient basis in itself for vitiating unambiguously worded authorization cards on the theory of misrepresen- tation A different situation is presented, of course, where union organizers solicit cards on the explicit or, indirectly expressed 8 The card read in full as follows RETAIL CLERK INTERNATIONAL ASSOCIATION (Affiliated with the AFL-CIO) Authorization for Representation Desiring to enjoy the rights and benefits of collective bargaining I, the undersigned , employee of the (Firm Name) Store Adress Store No. Employed as Dept. (Job Title) Home Adress Phone hereby authorize Retail Clerks International Association AFL-CIO, or its chartered Local Union to represent me for the purposes of collective bargaining , respecting rates of pay, wages, hours of employment , or other conditions of employment , in accordance with applicable law. Date Signature of Employee 523 representation that they will use such cards only for an election and subsequently seek to use them for a different purpose The Board stated further in a footnote "The foregoing does not of course imply that a finding of misrepresentation is confined to situations where employees are expressly told in haec verba that the 'sole' or 'only' purpose of the cards is to obtain an istic application of the foregoing principles, as some have contended The Board looks to substance rather than to form It is not the use or nonuse of certain key or'magic' words that is controlling, but whether or not the totality of circumstances surrounding the card solicitation is such, as to add up to an assurance to the card signer that his card will be used for no purpose other than to help get an election " I think one further comment is here appropriate. Thus, although in keeping with the Court's decision I sustained objections to questions which tended to probe the subjective motivations of employees in signing a card, there were instances where employees volunteered such testimony in response to otherwise legitimate questions. This testimony, whether favorable or unfavorable to one side or the other, has been disregarded by me. I have heretofore set forth the cards which Respondent concedes are valid. Confusingly, there are a number of other cards which Respondent concedes to be valid in the appendix to its brief, but which are attacked as invalid in the body of the brief. I have accordingly considered the evidence with respect to each of these cards and of these find sufficient reason to hereinafter discuss the cards of James Sherman, Gary See, Irene Goettl, and Gerald Meyers. However, after careful consideration of the entire testimony of the following employees (each of whose cards are conceded in Respondent's appendix as being valid), I am satisfied, without need to set forth this testimony, that the solicitors did not assure them that their cards would be used only for the purpose of getting an election. Accord- ingly, I find as valid the cards of each of these employees: Diana Nedrow Arnold Alexander James Messenger Robert May Mary Beard Jimmie Miller I turn now to a consideration of all other cards challenged by Respondent as being invalid for the reason asserted above. As indicated below, upon consideration of the testimony, I find the cards of the following four employees to be invalid: Gerald Meyers testified that the card which he signed was given to him either by Union Representative Barney or Union Representative Steele. Meyers testified "they [either Barney or Steele] said they were not binding in any way, they were primarily to get the election and they stated the more cards they had, the faster the union election could be set up. The better the percentage the better chances of ,getting things to moving faster." Since the General Counsel did not call either Barney or Steele to refute any of Meyers testimony, this testimony stands uncontroverted. Accord- ingly, and particularly because he was told that the- cards "were not binding in any way," I find Meyers' card to be invalid and I shall not count it. Russ Patton's card was received in evidence on the basis of Gerald Meyers' testimony that he gave it to Patton and that Patton signed the card in his presence. However, Meyers testified without contradiction that he told Patton "that the cards were not binding, they were just to speed up the election." I find Patton's card not to constitute a valid union designation and I shall not count it as such. 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shirley Barbelli testified that she received a card from Joanne Hiatt. She testified that Hiatt asked her a number of times to sign the card, telling her that "they had to have so many signatures in order for the union to come in and have a vote." However, Barbells testified that Hiatt also told her that signing of the card involved "nothing else" than the obtaining of an election. She said she finally signed the card in order to get Hiatt "off her back." In view of the foregoing, I find Barbelli's card to be invalid. I shall not count it. Patricia Parsons was given a card by employee Donna Dailey. Parsons testified "she asked me if I wanted one and she said it did not necessarily mean you were for or against the Union, she said it would be a chance for the voting." Under questioning by company counsel, Parsons further testified that Dailey told her that the foregoing was the only purpose of the card. Dailey was not called to testify concerning Parsons' card. Since it appears from Parsons' uncontroverted testimony that Dailey assured her that the only purpose of the card was to obtain an election, I find Parsons' card to be invalid. I find the following 13 cards to be valid. To avoid repetitiously stating that each card is valid after the testimony of each employee, I shall summarize my reasons therefore at the end of the testimony. Irene Goddard, who was given a card by Jerry Meyers, testified on direct examination that when Meyers handed her the card "he dust wanted to know if I wanted the card to join the union or to get an election, either one." On cross-examination she testified "he just handed me the card and said `we are trying to get the union in', and that is all. Then he handed me the card. There was nothing else said." Robert Fidler, who received his card from James Vance,9 first testified that he could not recall what Vance said to him and that he signed the card because he knew "what the card was for." In later response to a question by company counsel, Fidler merely testified that he "thought" Vance told him the purpose of the card was to get an election. Carol Pollman testified that she asked for a card, that someone in the service department brought one over to her, but that she did not remember who it was. She testified "I do not believe I discussed it with anyone that might have given me the card." Otherwise, her testimony reflects only that she heard some general discussion among the employees about an election and that she was aware there had been an election in a previous organizing campaign. She testified that she read the card before signing it.10 Ilda Mae Stallard testified that no one gave her a card but that she picked up a card that was lying on a table. She said she read it before she signed it. Otherwise, she testified that "the only thing I heard was they had to have a majority to sign the cards, so they would have a right to come in and get a vote." Thomas J. Daley, who could not recall who gave him the card, testified that he read it before signing it. On cross- 9 Vance was no longer an employee at the time he gave the card to Fidler 10 Although Pollman testified that she "knew " the card was to obtain more information about the Union, she did not testify that this was told to her by anyone Further, although at one point Pollman testified she was told she was under no obligation to anyone after she signed it , she later denied examination he testified "I don't remember what was said. We wanted a union or wanted to be represented. Just so we could see what it was about." The cross-examination of Daley then concluded with the following colloquy: Q. Did they tell you what it did involve? A. I really cannot remember. Q. Was there anything said about it being used to obtain an election? A. Yes. Q. Did they tell you it would be used for any other purpose? A. No. From the foregoing, I am unable to conclude that Daley was told by the solicitor that the sole or only purpose of the card was to obtain an election. To put it otherwise, I find that the evidence does not establish that the solicitor made any overt misrepresentation as to the purpose of the card which Daley conceded reading. Donald Shaver testified that he received the card from another employee whose name he did not remember. He said he kept the card for about an hour, read it, and then signed it. Upon questioning by company counsel, Shaver merely testified he recalled the solicitor saying to him that "it was supposed to try to get an election. He didn't say they would get one." Shaver did not testify as to any other comment by the solicitor. Donna Michaels testified that she received a card from employee Cleo Keefer and that she read the card before she signed it. Concerning what was said at the time, Michaels testified "I believe she told me if there were enough people to sign the cards there would be a vote taken in the store so we could decide at that time whether we wanted to or not." James Bartley, whose testimony reflects that he read the card, testified that he received the card from employee Jimmey Miller. He said he kept the card for about 5 minutes before signing it. When asked what was said to him by Miller, Bartley testified "the man said that they were in the process of trying to get a petition, the RCIA was trying to get an election for the union to come in and represent Montgomery Ward and wanted to know if I would sign that authorization card which did authorize them to go ahead, as far as I knew, to go ahead with the petition whatever they call it, they'd get some, so many signatures to try to get an election." Debra Lamneck testified that she received a card from her sister, Luanne Shade, while visiting at the home of a friend. She testified that she read the card before signing it. Concerning what Shade told her at that time, Lamneck testified "the only thing she said was that some employees were trying to get the union into Wards. I had not known anything about it and she said this would get information to me and that is why I signed the card."" that anyone made a statement to her to this effect 1 1 I have included the testimony "that is why I signed the card" only because it completes this sentence of Lamneck 's testimony However, since this testimony relates to the witnesses' "subjective motivation ," under the authority heretofore cited, this volunteered testimony is not to be properly considered MONTGOMERY WARD & CO., INC. 525 James Sherman testified that he received a card from James Vance.12 He testified that he held the card for 3 or 4 days before signing it and that he read the card before doing so. Otherwise, the testimony of this witness was quite confused and indicated that he did not clearly recall what was said to him when the card was given to him. Initially, he testified that Vance "just gave it to me to fill out." At another point, he testified that he could not remember anyone saying anything to him about an election. Still later, he testified, "Everybody was talking about the election, I cannot bring to mind who told me, we were just all standing around talking about it." After still further cross-examination, the witness finally testified that he was told by Vance "to fill it out, it was for the purpose of getting an election in the store. They got some-so many cards filled out, and there would be an, election." Jerry See testified that the card was given to him by David Wallace (the alleged discriminatee herein) and that he read the card before signing it on September 28, 1970. Otherwise the testimony of this witness was confusing. Initially he testified "he explained to me this was to see if they could bring in the union if we felt that we wanted it ... to set up a meeting to talk to the officials if they had enough cards it would bring one in and we could vote on it then." At another point he testified "I cannot remember exactly what it was [that was said]. To be honest I don't know exactly but it was in the form if we wanted a union this is the way it would be started." At another point he testified that he was told "just sign the card so they knew who would be in favor of an election." On final cross- examination, he testified "he said they were to sign for a union to possibly come in after the election was held." Irene Goettl testified that she signed a card at a union meeting held on October 4, 1970, that she did not recall who handed her the card, but that she read the card before she signed it. Testifying that she "really could not remember everything that was said about it" she recalled on cross-examination that Union Representative Barney made a statement to the effect that "this card would enable us to vote." Patricia Irvin (nee Switzer) testified that she received her card from an employee named Ann who worked in the catalog department. She read the card before signing it. When asked what Ann said to her at the time, Irvin testified "I don't know her exact words, it was something to the effect that if the union were to-well I don't know how to say it. Before the union could have an election they would have to show that people were interested and she gave me the card and asked if I would sign it and I said yes." She also testified that Ann told her to sign the card .,if she were interested in a union." Where, as here, the employees sign unambiguous, single purpose cards, it would appear clear that the burden of 12 Vance was no longer an employee at this time 13 In fact, statements made to certain of the employees here concerning the use of the card to obtain an election are similar to statements made by the solicitors in the Medley Distilling, supra, which statements the Board found not to invalidate the cards I recognize that the dissent in Medley Distilling, noted in In 8 therein , as well as the dissent in Essex Wire Corporation, 188 NLRB No 59, would possibly invalidate some of the above cards where similar statements were made However, to date, the principles propounded in each of these cases have not been reversed and I proof necessary to establish that any such card was obtained through misrepresentation concerning its purpose falls upon the party asserting the fact, here the Respon- dent. In this connection it is true, as shown above, that cross-examination succeeded in showing that some of the employees could not remember just what was said to them by the solicitor. In other instances, cross-examination succeeded merely in eliciting confusing and/or inconsistent testimony by some of the employees who signed cards. The eliciting of this testimony, however, does not prove misrepresentation by the solicitor. Accordingly, I do not find invalid any of the above cards on the mere ground that the witnesses gave uncertain, confused or possibly inconsistent testimony as to what was said to them by the solicitors. From the testimony set forth above, I conclude and find that there is not a single instance where the employees were told that the only or sole purpose of the card was to obtain an election. Although it appears that in some instances the mention of an election was the only specific use for the card given by the solicitor, the Board has held that this does not imply that that was the sole purpose for which the card would be used. Medley Distilling Company, Inc., 187 NLRB No. 12. Accordingly, and in view of the foregoing, I find that the cards of the above 13 employees are valid.13 Finally, James Wallace signed a card on September 28, 1970. Although Wallace was terminated on October 10, 1970, it is hereinafter found that the said termination was in violation of Section 8(a)(3) of the Act. Accordingly, since Wallace still enjoyed the status of an employee at all material times after September 28, I find his card to be valid and it should be counted. In sum, it has been found that as of October 13, 1970, the Union held a total of 97 valid cards. Accordingly, it is found that the Union represented a majority of the employees in' the appropriate unit at the time the Respondent received the Union's recognition and bargain- ing request. C. Interference, Restraint, and Coercion 1. The wage increases As indicated elsewhere herein, the union campaign began on September 28, 1970. On September 30, 1970, Stephen S. Frockt, employee relations manager for Respondent's north central region,14 received a telephone call from C. M. Levengood, then store manager of the Mansfield store, advising him of the inception of the organizing campaign. Concededly because of the union activity, Frockt, who is headquartered in Chicago, visited the Mansfield store on October 5 and 6. Frockt testified that at this time he consulted with Store Manager Levengood and also with Eva Welch, the personnel deem myself bound by the Board majority. I would note one possible distinction, however, in the cited cases from the one at bar. Thus, while practically all of the employees here testified that they read the cards before signing them, it does not appear that in Medley and Essex the employees gave affirmative testimony to the effect that they read the cards before signing them 14 Mr Frockt, an attorney, is largely involved in Respondent's labor relations program. He represented the Respondent in the representation proceeding. (Case 8-RC-8000) 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manager of the Mansfield store, concerning personnel policy and the wage rates that were being paid the employees at the Mansfield store. According to Frockt, from them he learned for the first time that the Mansfield store was not following a so-called regional wage plan which was to have taken effect in 1968. Frockt said that he thereupon called his superior, a Mr. Horrell, and after advising him of the foregoing was authorized by Horrell "to see that the plan was complied with." Continuing with Frockt's testimony, he said that before leaving Mansfield on October 6 he instructed Mrs. Welch to immediately bring all employees up to the minimum of their grade and to correct any other "flagrant" violations of Respondent's wage policy. It is undisputed that shortly thereafter, with an effective date of October 8, 1970, approximately 45 employees were giveI wage increases ranging from 5 to 15 cents per hour. It is also undisputed that a second round of wage increases were given to employees in the unit effective as of October 15, 1970. Frockt gave generalized testimony to the effect that these were granted at this time because Store Manager Levengood had reduced or disregarded certain wage increases recommended by Mrs. Welch following his visit to the store on October 5 and 6. In any event, 15 to 20 employees in the unit were granted wage increases on October 15 in the amount of, as Frockt put it, "more like 15 cents." Frockt testified that he spoke to Mrs. Welch over the telephone about these increases about 2 days prior to October 15. Thirty-five (35) employees received wage increases with their pay envelopes on December 2. This was just before the election, which was held on December 4. As shedding light upon the motivation for this increase, certain background facts are appropriate here. Thus, it is undisput- ed that Frockt came to Mansfield on November 17 and remained there until November 20. It is further undisputed that during this period he held meetings with various groups of employees during working hours. Twelve such meetings were held within this 4-day period. Concerning these meetings, Frockt testified that he advised the employees about the "implications" of the forthcoming election, that he explained to them the mechanics of the election, and that he urged the employees to vote. Frockt acknowledged that the meetings would then be left open for a question-and-answer period, following which he held "private" discussions with individual employees if they so wished. A number of employees testified concerning these meetings, including the following: Marcilyn Spencer went up to Frockt after one of the meetings. She testified, "I told him I did not think it was fair that I worked up 6 years seniority and that the new girls came in at a nickle or a dime less than I make " She testified that Frockt thereupon procured her records, went over them, and a little while later told her that "I should have had a raise." Spencer in 15 Spencer impressed me as an honest and intelligent witness I credit her testimony. Without refuting this testimony, Frockt merely testified "Mary Spencer had had an increase already in, but she had not been informed of it by her department manager, and I informed her that it already had been implemented 16 Conceding Warner's increase, Frockt testified that this was "another instance where the increase had already been put through, but Mr Parks, fact received a 15-cent raise prior to the election in the manner hereinafter noted.15 Similarly, Geraldine Ruffaner credibly testified that she spoke to Frockt after the meeting which she attended and pointed out to him that although he had stated a number of employees had received a 10- cent raise, she had received only a nickel. She said that Frockt thereupon examined her records (together with Mrs. Welch) and told her that she was being processed for a 5-cent raise. Pamela Putnam credibly testified, inter aka, that during the question-and-answer period "quite a few employees" stated that they had not received raises and wanted to know why they had not. Frockt responded, she said, by stating that Levengood had not followed company procedure and that "they were going to start following it." Viola Warner, employed since January 1965, is a NCR bookkeeping machine operator. After one of the meetings in question, Warner broached Frockt as he passed through the credit department. Stating that there had been "a lot of talk" about raises, Warner asked why she had not received one. Frockt said he would look into the matter. Later the same day, he returned and advised Warner that she would get a raise. She in fact did received a raise on December 2, 1970.16 In defense to the allegations of unlawful wage increases, it is basically Respondent's contention that it inaugurated a regional wage plan in 1968, that this program was to have been "fully operational" by August 1970, that it was not implemented at the Mansfield store due to the failure of Store Manager Levengood to put it into effect, and that the Company finally took steps to rectify the matter by granting the wage increases mentioned above after Frockt uncovered the situation when he visited the Mansfield store on October 5 and 6, 1970. For the reasons stated below, I reject Respondent's defense as aforesaid and find that these wage increases were in clear violation of Section 8(a)(1) of the Act. Preliminarily, it may be noted that the asserted basis for the inauguration of a new wage program in 1968 is a document entitled "Proposed Retail Wage Administration Plan," hereinafter called the proposed wage plan, received in evidence as Respondent's Exhibit 17.17 Although page 2 of this document states that there was to be complete installation of the program in all stores by August 1, 1970, it may be pointed out that the testimony in this case related only to the Mansfield store. There is no evidence to reflect whether or not the program had in fact been implemented by 1970 in the other 169 stores (in 300 or so locations) within the north central region under Frockt's supervision. Furthermore, in view of the various administrative controls and reporting requirements incorporated in the proposed wage plan, it seems strange indeed that Respondent did not become cognizant of the Mansfield store's alleged failure to follow instructions and put the plan into effect prior to the advent of the Union.18 In any event, and aside from all the foregoing, the fact the credit manager, had not covered it with Warner " 17 Although Resp Exh. 17 is basically a typewritten document, numerous corrections, additions, and sinking out of words or of entire clauses appear in handwriting thereon In the complete absence of any explanatory testimony, there is no telling the effect, if any, of the handwritten changes which appear on this exhibit 18 Thus, one section of the proposed wage plan provides that the regional MONTGOMERY WARD & CO., INC. remains that it was the organizational activity which brought Frockt to the Mansfield store on October 5, 1970. Since the three wage increases which were subsequently granted prior to the election held on December 4, 1970, admittedly were predicated upon Frockt's investigation and evaluation of the wage structure at the time of this visit, it is equally clear that the timing of these wage increases came about as a direct result of the union activity which brought him there at this time. However, in rejecting Respondent's contention that the action taken was but a legitimate step to correct a past failure to implement its wage program, I do not rely on the timing alone. Thus, it has already been noted how Frockt met with groups of employees and individual employees between November 17 and November 20, how the employees' concern over wage increases was raised as a prominent subject of discussion, and how Frockt advised a number of employ- ees, after checking their records, that their raises would be forthcoming. Significantly, when queried about the De- cember 2 wage increases, Personnel Director Welch testified that all of these were "submitted" on November 19 While it thus appears that the submission of these wage increases came about as a result of Frockt's discussions with the employees during this period, even more revealing is the undisputed fact that when the employees were paid on December 2, cash bills in the exact amount of the wage increases were attached to the outside of the pay envelope. In addition, each employee receiving a pay increase was required to sign a special voucher for the amount of cash thus received. If any doubt remains as to the purpose of the granting of these wage increases just 2 days before the election, such doubt is dispelled by this tactic which I think quite obviously was designed to make certain that the employees got the message.19 Finally, there is a further incident reflective of Respon- dent's motives. Employee Pamela Putnam, employed since April 1966, received a 5-cent increase on October 8 and a 15-cent wage increase on December 2, 1970.20 On or about December 2, Putnam had a conversation with her supervisor, Donald Stewart. Putnam testified that on this occasion Stewart came up and asked if she had received a raise. Putnam testified that when she responded that she had, Stewart responded, "Well, you really don't need a union. The company has given you a raise." Employee Geraldine Ruffaner testified that she observed Stewart talking to Putnam on this occasion but did not overhear the conversation. Ruffaner testified that when Stewart left Putnam he came over to her and asked what the employees hoped to gain by having a union. Stewart conceded having personnel director is to periodically review wage administration practices at district zone and store levels to assure that competitive wages are being paid and the proper wage scales are followed Another clause provides that to assure control and effective implementa tion, all employees being paid less than the grade minimums must be listed on the wage adjustment report, copies of such report to be sent to the zone or district manager's office every 6 months, until all employees are being paid not less than the minimum of their respective ranges 19 Respondent's attempted explanation for attaching the cash to the pay envelopes serves but to further expose the unlawful motivation herein found Thus, the employees are regularly paid in cash which is contained in a sealed envelope Welch testified that when she notified the cashier of the raises, it was too late to include the additional pay in the envelopes because the regular pay already had been enclosed and sealed therein This in itself 527 a conversation with Putnam and Ruffaner about a day or so before the election but testified that at this time he only stated that "I didn' t see where the union I worked for had benefited me for the amount of money I paid." He denied making any statement to the effect that the employees did not need a union to get a raise. From my observation of the witnesses, I credit the testimony of Putnam and Ruffaner over that of Stewart. In view of all the foregoing, I think it clear, and I find, that the numerous wage increases granted during the organizational campaign and those granted just 2 days before the election, all of which are set forth above, 21 were designed to undermine the Union and were deliberately aimed to discourage unionization. It is well established that such conduct is violative of Section 8(a)(1) of the Act. N. L. R. B. v. Exchange Parts, 375 U.S. 405; J. C. Penney Co., Inc. v. NL.R.B., 384 F. 2d 479, 484-485 (C.A. 10). D. Interrogation Paragraphs 7(A), (B), and (C) of the complaint contain elaborate allegations to the effect that Respondent unlaw- fully interrogated employees concerning their union activities. In fact, however, the evidence reveals only the following incidents to have occurred: (1) As set forth in the section above, on about December 1 or 2, 1970, Supervisor Donald Stewart asked employee Geraldine Ruffaner what the employees hoped to gain by having a union. (2) Employee Lester Prosser testified that his supervisor, Harold Althen, "asked me once if I was on the committee for the Union." Prosser was considerably uncertain as to when this occurred. Althen denied asking Prosser the question. He testified that Prosser volunteered this infor- mation a few days before the election when he (Prosser) mentioned that he was a union observer and would not be at work on the day of the election. I credit Althen's testimony. (3) Employee Shirley Baker testified that on an occasion in October 1970, she and another person (either an employee or a customer) were talking about improving certain working conditions. She said that this was over- heard by her supervisor, Marion Steffan, and that Steffan then remarked that she did not know that she [Baker] was for a union. Baker testified that when she replied in the affirmative, Steffan asked her what she had to gain by one. Steffan testified that she did not recall ever asking Baker any question of the foregoing effect. Even though I credit Baker's testimony, I do not find any violation in this spontaneous, innocuous conversation. appears incredulous, inasmuch as Welch earlier testified that the raises had been authorized on November 19 In any event , Welch conceded that absent her special instructions to the cashier, the pay increase normally would have been received by the employees in their pay envelopes on December 9, which would be after the election When queried as to the reason for the special instructions Welch merely testified "I didn't want the individuals to wait another week for that money " She said she also told the cashier that " I wanted those merit increases now " 20 Resp Exh 19 21 It is indeed possible that more employees than previously mentioned received pay increases during the critical period, for at one point Welch testified that "almost all" or a "majority of the employees " who had been employed for longer than 3 months were the recipients of wage increases. 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (4) In June or July 1970, employee Robert Burkey was summoned to the office of John P. McPherson, manager of the auto service center. Supervisor James Vance was also present. At this time, McPherson told Vance that the word was around that he was trying to organize a union,-that a union would be no good at the store, and that he should cease these activities. The foregoing testimony of Burkey is undenied. As already indicated, I find no merit to the allegations pertaining to the incidents set forth in paragraphs 2 and 3, above. While I ordinarily would regard the interrogations set forth in paragraphs 1 and 4 as being too isolated to find a violation, in view of the other more serious violations found herein, I find these incidents to be cumulative violations of Section 8(a)(1).22 E. The Discharge of David Wallace David Wallace, employed by Respondent as a mechanic in the auto service center for approximately 3 1/2 years, was discharged on October 10, 1970. It is undisputed that Wallace was responsible for starting the union activity and that he was the leading union adherent up to the time of his discharge. To reiterate what has been noted previously, James Vance, supervisor of the auto service center, was discharged on September 28. When Wallace reported to work at about 4 p.m. that day,23 he found employees in this department standing around engaged in a work stoppage in protest over the firing of Vance. When the employees learned that Wallace was familiar with unions they requested that he go and obtain some union cards. Wallace left the plant and, after inquiring at a General Motors plant, finally went to the hall of the Retail Clerks Union where he obtained a batch of authorization cards from Union Representative Barney. He promptly returned to the auto service center where he passed out the cards to the employees, a number of whom signed immediately. Wallace testified that Supervisor Francis Hiatt and John A. McPherson, manager of tires, batteries, and accessories, were present at this time.24 McPherson denied observing Wallace pass out the union cards, but conceded that he learned that Wallace had gone to the union hall and, further, that on that same day, September 28, he reported this fact to David Ed, the operating manager of the store.25 Wallace further testified that during the first 2 days of the organizational activity he passed out approximately 75 union authorization cards to the employees. In the early part of September 1970, Lane Cook, Respondent's regional protection manager who is head- quartered in Chicago, Illinois, dispatched two investigators to the Mansfield store to conduct an investigation concerning reports of possible theft at that store. It is undisputed that, as a result of this investigation, 14 Mansfield employees were discharged between the dates of September 17 and September 29, 1970. It is Respondent's contention that Wallace should have been discharged along with this group on September 24, 1970, that this action was inadvertently overlooked, and that he finally 22 Although the Burkey incident occurred prior to the organizing campaign involved herein, it nevertheless did occur within the Sec 10(b) period 23 Wallace's hours with Respondent were from 4 or 5 p in. to 9 p in. He was discharged on October 10, 1970, at which time the oversight came to its attention. I turn first to the testimony of Wallace. On September 23 at or about 8 p.m., Wallace was called to the store's main office where he was told by Operating Manager Ed to go into a side office. He was first interviewed by Company Investigator B. W. Pool. A short while later, Company Investigator Carter Foss entered the office and joined in the interrogation of Wallace. Wallace denied having ever stolen anything belonging to the Company. However, after pointing out that when he was first hired the then service manager, Ralph Hedrick, told him that the employees were free to grease their own cars when not busy, Wallace conceded having greased his car without paying for it. He then gave a signed statement which stated: I have lubricated my car 1964 [sic] Chrser approxi- mately 30 times without paying for it the total cost of labor that have Wallace testified that they all then left the private office and stood for a moment in front of Ed's office at which point, in the presence of Ed, one of the investigators said, "He will be back tomorrow for a lie test." Wallace testified that the next day he went directly to the office at his reporting time (4 p.m.) but found that only Ed was present. Wallace testified that he then asked Ed if he was to take a lie detector test, but that Ed told him he should just go back to work. It is undisputed that from thenceforth Wallace continued to work without anything further being said about the matter. However, upon reporting to work on the morning of October 10, Wallace observed that his timecard was missing. Upon being sent to the office, he at this time was told by McPherson that he was discharged. Wallace testified that McPherson stated, "I don't know why but you are no longer with the company. . . . the only thing I can understand is there was a mixup of the papers and you were supposed to have been gone with the rest of them." Wallace then reported to Personnel Manager Welch, who, according to his credited and uncontroverted testimony told him, "Dave, I didn't believe it, I thought it was all over with, I didn't believe they would let you go. . . . You [were] even set for a raise, which was approved and this I can't understand, it makes me wonder if after 24 years I still have a job." Now to Respondent's case, the first part of which relates to the events on the evening of September 23, Wallace's version of which has been set forth above. David Imrie, a field inspection supervisor headquartered in Chicago, was in charge of the Mansfield store investiga- tion and spent two weeks in Mansfield. On the evening of September 23, Imne interviewed employee James Davy. Davy admitted thefts totaling $69.58 in value not been payed for amounts to $45.00 I realize that I was and Imrie also held a daytimejob with another company. 24 It appears that McPherson was put in charge of the auto service center for several weeks after Vance's termination 25 Respondent concedes knowledge of Wallace's union activity MONTGOMERY WARD & CO., INC. 529 took a promissory note from him for this amount. Imrie testified stealing and I am sorry.26 Wallace testified that after he gave the statement Foss asked if that, after interviewing Davy, he proceeded to the general office area where he encountered Foss. According to the testimony of Imrie, a Respondent witness, the following then ensued: He asked Foss about the Wallace interview he would object to taking a lie detector test. Wallace responded that he would submit to the test. However, pointing out that it was about 9 p.m. and Foss replied that Wallace had admitted taking $45 worth of labor and that he wanted to go home, Wallace asked to be given the test the following day. According to Wallace, Foss responded, "O.K., you can come in tomorrow." can come in tomorrow." without paying for it. He then went up to Ed, who was standing with a number of other people, showed him the statements of Davy and Wallace, and stated, "Davy, we have got some statements here. These guys have got to go." According to Imrie, Ed at this point "looked at" the statements and said "Yes." Imrie said he thereupon went into Ed's office, where Wallace was waiting. Without identifying himself to Wallace, Imne said he then told Wallace that it was the decision of manage- ment that he be terminated at this time for taking company merchandise that did not belong to him. Significantly, although Imne testified that Foss was present in the office and was able to overhear the conversation when he told Wallace he was discharged, Foss was not called to corroborate Imrie concerning this disputed conversation.27 In any event, Imne testified that after this he went to the store manager's office where he had interviewed Davy. He said Davy was still there and that he then told Davy that he was discharged. Imne further testified that upon returning to his motel that night he made notes relative to the Davy and Wallace investigation. With respect to Wallace the notes state, inter alia, "Facts were reviewed with Ed and Wallace was terminated under Code 15-1."28 Ed was present in the office area on the evening of September 23. When first called as a Respondent witness, Ed testified that after Wallace was interviewed in a separate closed office, he observed Wallace talking with Foss outside the office in the lobby at about 9:15 p.m. Testifying that he did not recall the "exact conversation," Ed said he did overhear Wallace say that he had to get home, whereupon Foss told Wallace to come back the next evening at 5 p.m. Ed said he did not speak to Foss, but said that at this point everyone went home. Ed was recalled by Respondent just after the conclusion of Imrie's testimony. This time he testified that he was sitting at a desk in the reception area of the office when, at about 8:30 p.m., Imrie brought him a statement which he had taken from James Davy. Continuing, Ed testified that he "scanned over the statement," that a decision was made to terminate Davy, and that he gave permission that Davy be terminated. However, Ed did not testify that Imrie also showed him Wallace's statement. Indeed, Ed testified that Imrie never so much as mentioned Wallace's name to him the entire evening and, further, that he did not receive any report whatsoever to the effect that Wallace had been terminated. Pausing here to state my resolution of the conflicted testimony, I do not in any respect credit Imrie's testimony of telling Wallace that he was terminated on the evening of September 23. Not only did Wallace impress me as an honest and forthright witness, but from the testimony above set forth, which I do not deem necessary to recapitulate here, it is readily apparent that even the testimony of Operating Manager Ed is more substantiative of Wallace's testimony than it is of Imries'. In short, I find that, rather than being told that he was terminated, Wallace was told to return for a lie detector test when he reported to work the following day. As Ed conceded, the next day Wallace did report for the lie detector test, as requested, but at this time was told by him to return to work. Turning to the second aspect of Respondent's defense, Personnel Manager Eva Welch testified that on October 7, 1970, the payroll clerk furnished her with the names of all the employees who had been terminated as a result of the security investigation. Welch testified that except for the fact that three employees came and said goodbye to her, she did not know about these discharges until being so advised by the payroll clerk on that date. It seems strange that, as personnel manager, Welch had not received earlier notification of this action, since the first of these discharges occurred on September 17. Indeed, when queried as to who normally discharges an employee, Welch answered, "I usually do it with the department manager, or it would be another staff member . . . I usually handle the majority of them." She also testified, "If another staff member handles it, then the staff member that handles it gives me the information." In any event, Welch testified that on this date she telephoned Lane Cooke in Chicago in order to obtain the termination codes for the employees who were released during the investigation. She said that during the conversation Cooke mentioned Wallace' s name, but that Wallace's name was not on the list of names supplied to her by the cashier of employees who had been discharged. Welch testified that when Cooke learned that Wallace had not been discharged, he responded that Wallace should have been released on September 24 and that "he should be off the payroll immediately." She thereupon told Cooke, she said, that she would report the matter either to Ed or Levengood and the action would be taken immediately. Cooke, who also testified concerning this conversation, said that, when apprised that Wallace was still working, he told Welch that "something should be done about this immediately, and refer this to management and have this matter taken care of." Cooke testified that he was apprised of the Mansfield investigation through various reports which were submitted to him by his investigators. In this connection, Cooke testified that certain of these reports contained statements reflecting that Ed made the decision to discharge Wallace and that they further reflect that in fact Ed "did the discharging." 29 This, it may be noted, is in 26 According to Wallace's unrefuted testimony, the language in this 28 The notes were received in evidence as Resp. Exhs 13 and 14 statement was dictated to him by his interrogator 29 The reports to which Cooke alluded, above, from which he said the 27 In fact, Foss was not called to testify at all in this proceeding summary report was made (Resp. Exh. 10) were not introduced in evidence 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD direct conflict with Ed's testimony concerning the events of September 23 and 24, all of which is heretofore set forth But to proceed, from the testimony of Lane and Welch set forth above, it was on October 7, a Wednesday, that Lane told Welch that Wallace should be removed from the payroll "immediately." Notwithstanding these asserted instructions, it is undisputed that Wallace was not terminated until Saturday, October 10. The rather incredi- ble testimony of Respondent witnesses as to why this action was deferred for so long is as follows: Welch testified that she told Store Manager Levengood about her conversation with Cooke about an hour after it occurred. According to Welch, Levengood thereupon told her "that Wallace should be taken off the payroll . . . that I should contact Mr. McPherson and also mention it to Mr. Ed." As ,to the next step, Welch testified on direct examination that on Thursday, October 8, she told Ed about the Cooke conversation and that Wallace was to be released. Ed replied, she said, that Levengood had dust mentioned it to him and that it would be handled. Welch further testified that she did not notify McPherson about the matter on October 8 because he had already left the store, but that she called McPherson on Friday morning, October 9, and told him about the Cooke conversation. She testified that at this time she asked that Wallace's timecard be brought to her office. Ed testified that on October 8 Levengood told him that Wallace was to be terminated as a result of the protection investigation, but did not say who was to take this action. Ed testified, however, that on October 9 he called McPherson "and asked him to bring Mr. Wallace's timecard to our office to make up his final pay." He said he spoke to McPherson again that afternoon "and he was to handle it with Mr. Wallace when he reported to work that evening." McPherson testified that on either October 8 or 9 he was called by Welch who told him that Wallace was to be discharged "at the earliest convenience." He further testified that Friday was Wallace's day off, but that Wallace came up to him on Saturday morning when he found his timecard had been pulled.30 He said at this time he told Wallace that there had been a mixup, that he should have been discharged with the others at the time of the investigation, and that he should go to personnel. It is, of course, undisputed that at this time Wallace went to see McPherson and Welch and at this time was officially apprised of his discharge. One further aspect of the testimony should be noted here. Lane Cooke, the regional protection manager, testified that when his protection men obtain a statement from an employee admitting a theft, this statement is reviewed with the store manager "and the store manager makes a decision as to who will be terminated." He said that in the absence of the store manager, the actual 30 McPherson said he could not recall whether or not it was he who pulled the card 31 Levengood was replaced as store manager in December 1970 and about this time left Respondent's employ Levengood did not appear as a witness in this proceeding 32 Welch testified that on a previous occasion an employee was discharged for stealing switches in the hardware department Although she placed the value of the switches as being "$2 00, or a little bit more," the fact remains that this employee was terminated for stealing an article of merchandise 33 Respondent introduced in evidence a notice signed by Store Manager decision to fire could then only be made by the assistant store manager or the operating manager. It is clear that this procedure was not followed by Respondent in Wallace's case, for even Respondent witnesses, particularly Imrie, did not claim to have discussed Wallace's case with Store Manager Levengood.31 Indeed, as previously found, Imrie did not even so much as discuss this matter with Operating Manager Ed before allegedly discharging Wallace on September 23. Upon the entire record in this case, I am convinced that Wallace was terminated because of his union activities rather than for cause. As found above, Wallace was not terminated on September 23. And neither should he have been, for the record leaves no doubt that Wallace was not guilty of any deliberate theft and that in this respect his case was unlike any of the other employees who were terminated as a result of the security investigation conducted in September 1970. Thus, all of the other terminated employees admittedly were found guilty of stealing some item or items of Respondent's property, such as merchandise or goods.32 Wallace, on the other hand, concededly was not guilty of any such theft. Moreover, as heretofore noted, Ralph Hedrick, who preceded Vance as manager of the auto service center, gave Wallace permis- sion to grease his car at no cost when he was not busy. Wallace took advantage of Hedrick's offer although, as he testified, he did pay for grease fittings when he used them. Further, Wallace credibly testified that sometime after Vance took over Hedrick's position, Vance announced that from thenceforth, a work order would be required for every car.33 Wallace testified without contradiction that from that time on he paid for all grease jobs on his car at Respondent's store. In short, not only is it clear that Wallace was not guilty of any theft, but I also find that Wallace's greasing of his own car without paying for it was entirely done with Respondent's permission. The fact that Respondent's asserted case against Wallace as of September 23, 1970, does not stand up under scrutiny in itself is strongly indicative that Wallace would not have been discharged on October 10, 1970, but for his intervening union activity. So, too, do the strange circumstances and the inconsistent testimony relative to the termination of this employee which finally was effected on October 10. Thus, not only does it seem odd that the management at Mansfield delayed discharging him for 3 days after it purportedly received instructions from Chicago, but Respondent has failed to explain why the store manager, who according to Cooke was responsible to make the P.W. Conway, dated November 17, 1968, which stated, inter aha, that employees would not be permitted to work on their own cars in the garage lmrie testified that this notice remained posted in a maintenance office (not on an employee bulletin board) as of October 1970 Imrie was so entirely discredited as a witness that I am highly skeptical of this testimony In any event, however, the evidence reflects that if this notice did remain posted, it was disregarded Thus, the testimony reflects that other maintenance employees also performed work on their cars without a work order Any rule as reflected on the purported 1968 notice was not enforced , as found above, until Vance's announcement later in 1970 that work orders on all cars would thenceforth be required (See also Tr 1254-55 ) MONTGOMERY WARD & CO., INC. decision, was not consulted or otherwise involved in the determination that this employee be discharged.34 Finally, and as further reflecting on Respondent's motives in discharging Wallace, I have taken into consideration the other unlawful conduct found herein resorted to by Respondent in combatting the Union, particularly the extensive unlawful wage increases which were granted to the employees during the organizational campaign and just prior to the election. In sum, and for all the reasons set forth above, I find that Respondent's discharge of Wallace on October 10, 1971, was violative of Section 8(a)(3) of the Act. F. The Objections Concerning the Petitioner's objections filed in Case 8-RC-8000, Objection I relates to the unlawful discharge of Wallace, Objection 3 relates to unlawful interrogations, and, Objection `4 relates to the granting of unlawful wage increases. Since the conduct alleged in each of these objections is the same as that involved in the unfair labor practices previously found herein, I find merit in Petition- er's Objections 1, 3, and 4. Petitioner's Objection 2 alleges as follows: The employer during the subject time period held meetings between high management officials and small groups of employees. In these meetings the employees were urged to vote against the union. They were advised that the union could do nothing for them and that anything that would be done for them would be done by management. Company officials in these meetings solicited individual employee grievances and complaints including some grievances and complaints on which employees had previously been denied relief. Some grievances were resolved in a manner favorable to the employees while others were promised a favorable disposition. The employees were further promised by a new manager correction of past mistakes and mistreatment of employees if they would vote against the union and thereby allow the new manager to "work things out by himself." With respect to the above objection, I have previously related how Frockt came to Mansfield on October 5 and 6, at which time he initiated the granting of wage increases, and how he subsequently returned and held meetings with individual groups of employees on November 17, 18, 19, and 20. In addition to this activity, it is undisputed that on October 8, 9, and 12, 1970, Store Manager Levengood also held meetings (several on each day) with different groups of employees. It is further undisputed that Richard Beech, who succeeded Levengood as store manager sometime in November 1970, held additional meetings with groups of employees on November 30 and December 1 and 2, 1970. Considering the large number of employees who testified, the testimony concerning the Beech and Levengood meetings was rather fragmentary. However, the general purpose and tenor of these meetings was best described by Pamela Putnam, a service clerk in appliance service, whose 34 Moreover, although Welch testified that it was she who customarily notified employees when they were discharged, it is another peculiarity that she did not do this in Wallace's case Further, there is no explanation as to why Levengood, who according to Welch reported the Cooke conversation 531 testimony I credit. Concerning the Levengood meetings, Putnam testified as follows: He [Levengood] wanted to know if any of us had any problems or gripes and if he could help solve them. And, there was an open discussion of the group of the department and they brought up the problems they were having in the departments and discussing them . . . . Really I listened to them [the problems brought up] but I don't really recall. Because they were completely- . . . well, it did not have to do with our department. He said he would see what he could do. I remember him say this because some people were really upset. But I really don't remember . . . . The only thing I asked him about was the schedule, and I asked if we could fix it so we would only go to one area one time a week . . . . He said that it was difficult to have more than one day but that he would see what he could do. Concerning the Beech meeting which she attended, Putnam testified: When he [Beech] came in-he was very nice. He was completely different from Mr. Levengood to me, his personality. And, he said he couldn't help us get some of our problems solved. And, he said he would see what he could do to help the employees. He was very friendly to all of us, very outgoing. You really believed he would do everything in his power to help you ... . They [the employees] all talked. This was more of a get to know you meeting than getting into and raising any problems at this time. He was brand new at the store, he did not know any of us. Employee Jimmie Miller recalled that at the Levengood meeting which he attended the employees brought up various "gripes," including complaints about the wage scale. Concerning the latter, Miller testified that Leven- good stated that the "maximum (rates) were awfully low in some fields and they were going to be revised"; also that a comparative wage survey was being currently undertaken. Concerning the Beech meetings, Miller testified Beech stated that "he was going to get the store and management relationship better, doing this, we would have a better store and we would get along as one big family"; and that "he felt his hands would be tied more or less more with the union than without the union." Employee Gerald Myers, who attended a Levengood meeting, testified that Levengood invited the employees to express their complaints. He said that the employees brought up such matters as the elimination of an employee picnic; the fact that the employees, not the Company, were required to pay for the last Christmas party; that the Company's commission policy was not fair to the employ- ees; and that employee morale was low. Myers further testified that Levengood took written notes of the employ- ees' complaints and that he stated that "he was truly trying to work these problems out." The foregoing testimony of Myers, all of which is uncontroverted, is credited. From the heretofore set forth testimony concerning the to him at about 5 30 p in on Wednesday , October 7, did not take any action at this time it is undisputed that Wallace worked that date , his hours being from about 4to 9pin 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Frockt meetings it is clear, and I find, that during these meetings numerous employees voiced complaints about their wages and that in response thereto Frockt promised to adjust these grievances. It is indeed a fact that these promises were subsequently accomplished. From the testimony set forth above, it is equally clear that, during 3 days of meetings with groups of employees, Store Manager Levengood invited the employees to speak up about their various grievances, gripes, or complaints. When the employees did express complaints pertaining to their wages and working conditions, Levengood took note of them and advised the employees that he would "see what he could do" and that he would "try to work these problems out." It is well settled that the aforesaid conduct of Frockt and Levengood during the critical period interfered with the employees' freedom of choice in the selection of a bargaining representative. Accordingly, and to the extent indicated, I find merit in Petitioner's Objection 2.35 In view of the bargaining order hereinafter recommend- ed, it is recommended that the election in Case 8-RC-8000 be set aside and that set aside and that the said proceeding be dismissed. V. THE REMEDY Having found that the Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully discharged David Wallace, I shall recommend that Respondent offer him immediate and full reinstatement to his former or substantially equivalent position and make him whole for any loss of pay he may have suffered by reason of the discrimination practiced against him, by payment to him of a sum equal to that which he normally would have earned from the date of his discrimination to the date of reinstatement, less net earnings during said period, if any. The backpay provided herein shall be computed in accordance with the Board's formula set forth in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at the rate of 6 percent per annum computed in a manner described in Isis Plumbing & Heating Co., 318 NLRB 716. In view of the nature and extent of the unfair labor practices herein found, I deem it necessary and appropriate to recommend a broad cease-and-desist order. G. The Refusal to Bargain As detailed above, Respondent here engaged in serious violations of Section 8(a)(1) and (3) of the Act, which were calculated to defeat the Union's organizational effort and to undermine its representation status among the employ- ees. It is my view that these unfair labor practices were so severe and pervasive that the invocation of traditional remedies affords no guarantee that an election will provide a more accurate index of the employee sentiment than the authorization cards executed by a majority of employees. Accordingly, I conclude and find that, by refusing the union's bargaining request and thereafter engaging in the aforesaid unfair labor practices, Respondent violated Section 8(a)(5) of the Act, and that a bargaining order is necessary and appropriate to protect the majority senti- ment expressed through authorization cards and otherwise remedy the violations committed. N.L.R.B. v. Gissel Packing Co., 395 U.S. 575. I further find that by unilaterally instituting wage increases without bargaining with the Union at a time when the Union represented a majority of the employees, Respondent violated Section 8(a)(5), as well as Section 8(a)(1) of the Act. N.L.R.B. v. Bennie Katz, 369 U.S. 736. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with Respondent's opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Montgomery Ward & Company , Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks Union Local No. 31, Retail Clerks International Association, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. The following employees constitute a unit appropri- ate for the purpose of collective bargaining within the meaning of Section 9(a) of the Act: All full-time and regular part-time employees employed at the Employer's Mansfield, Ohio, retail store and in its Longview warehouse, including the employees of the auto service center, but excluding the employees of the licensed hearing aid department, all department man- agers, managerial employees, confidential employees, professional employees, guards, and supervisors as defined in the Act. 4. At all times since October 13, 1970, the Union has been the duly designated bargaining representative of the employees in the aforesaid collective bargaining unit. 5. By refusing on and after October 13, 1970, to bargain with the Union as the exclusive representative of the employees in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By discriminating in regard to the hire and tenure of employment of David Wallace, thereby discouraging membership in the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 7. By the foregoing conduct, and by interfering with, restraining, and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act, Respondent has 35 The conduct of Levengood, described above, was not alleged to be in violation of Sec. 8(a)(1) of the Act Accordingly, I make no such finding MONTGOMERY WARD & CO., INC. engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law, upon the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby make the following recommended: 36 ORDER Respondent Montgomery Ward & Company, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully promising or granting wage increases for the purpose of undermining the Union; unlawfully granting economic benefits without first consulting with and bargaining with the Union. (b) Coercively interrogating employees concerning their union membership and activities. (c) Discouraging membership in Retail Clerks Union Local No. 31, Retail Clerks International Association, AFL-CIO, or any other labor organization, by discharging employees or otherwise discriminating with respect to their hire or tenure of employment. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self- organization, to form labor organizations, to loin or assist the above-named Retail Clerks Union, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. (e) Refusing to recognize or bargain collectively with Retail Clerks Union Local No. 31, Retail Clerks Interna- tional Association, AFL-CIO, as the exclusive representa- tive of the employees in the appropriate unit set forth in the conclusions of law above. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the above- named Retail Clerks Union as the exclusive bargaining 36 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 31 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by 533 representative of all its employees in the appropriate unit set forth above, with respect to rates of pay, wages, hours of employment, or other terms of employment and, if an understanding is reached, embody such understanding in a signed agreement. (b) Offer to David Wallace immediate and full reinstate- ment to his former job or, if this job no longer exists, to a substantially equivalent position and make him whole for any loss of pay he may suffer as a result of the discrimination practiced against him, in the manner set forth in the section of this Decision entitled "The Remedy." (c) Notify David Wallace, if presently serving in the Armed Forces of the United States, of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Preserve and, upon request, make available to the Board or its agents, for examining and copying, all payroll records, social security payment records, timecards, per- sonnel records and reports, and all other records necessary to ascertain any backpay due under the terms of this recommended Order. (e) Post at its store and facilities in Mansfield, Ohio, copies of the attached notice marked "Appendix." 37 Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respondent's representative, shall be immediately posted by it upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 8, in writing, what steps Respondent has taken "to comply herewith.38 IT IS FURTHER RECOMMENDED that the election in Case 8-RC-8000 be set aside and that the said proceeding be dismissed and also that any unfair labor practices alleged, but not herein found, be dismissed. 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 " 38 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith "