Montgomery Ward & Co., Inc.

52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Montgomery Ward & Co., Incorporated and Retail Clerks International Association, Local No. 187, AFL-CIO. Cases 27-CA-2969 and 27-RC-3815 July 10, 1972 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MILLER AND MEMBERS JENKINS AND PENELLO On June 11, 1971, Trial Examiner Richard D. Taplitz issued his initial Decision, attached hereto, in this proceeding. On July 2, 1971, the General Counsel filed a motion wherein, inter alia, the General Counsel acknowledged that, through inad- vertence, the statements of certain witnesses were not produced to Respondent for cross-examination purposes as required by Section 102.18 of the Board's Rules and Regulations, as amended, and requested that the proceeding be remanded to the Trial Examiner for the purpose of taking additional testimony. On July 21, 1971, the Board issued an order granting said motion. Accordingly, a supple- mental hearing thereon was held. On January 17, 1972, the Trial Examiner issued the attached Supplemental Decision in this proceeding. Thereafter Respondent and the General Counsel filed exceptions and supporting briefs. 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 Decisions in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions and to adopt his recommended Order. 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 and hereby orders that Respondent, Montgomery Ward & Co., Incor- porated, Cheyenne, Wyoming, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. IT IS FURTHER ORDERED that the election conducted in case 27-RC-3815 on May 13, 1970, be and it hereby is, set aside. [Direction of Second Election and Excelsior foot- note omitted from publication.] I We agree with the Trial Examiner that Adams is not a supervisor within the meaning of the Act In reaching this conclusion , we rely not only on the reasons set forth in the Trial Examiner's Decision, but also on the failure of the record to show by a preponderance of the evidence that Adams either possessed or exercised the authority to "effectively recom- mend" or "responsibly direct" within the meaning of the Act, or was more than a leadman-type rank-and-file employee whose judgment was valued, sought, and considered TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE RICHARD D. TAPLITZ, Trial Examiner: This is a consolidated proceeding in Case 27-CA-2969 on a complaint of unfair labor practices against Montgomery Ward & Co., Incorporated, herein called Respondent, alleging violations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, and in Case 27-RC-3815 on objections to the conduct of Respondent affecting the results of an election in which Respondent's employees participated, which objections involve in part the same alleged misconduct set forth in the complaint. In Case 27-CA-2969 a charge and amended charge were filed on May 18 and October 27, 1970, respectively, against Respondent by Retail Clerks International Association, Local No. 187, AFL-CIO, herein called the Union. The complaint issued on August 26, 1970, and as amended on December 18, 1970, and at the hearing, alleged that Respondent violated Section 8(a)(3) of the Act by discharging one employee, reducing the hours of employ- ment of another employee, and by changing the working conditions of employees to discourage union activity; violated Section 8(a)(1) of the Act by conduct that included unlawful threats and promises , interrogation, and other activities intended to undermine the Union; and violated Section 8(a)(5) of the Act by unlawfully refusing to bargain with the Union. In its answer Respondent denied the commission of any unfair labor practices. In Case 27-RC-3815 the Union filed a petition on March 24, 1970, seeking an election in a unit of the selling and nonselling employees employed by Respondent at its retail store located at 1510 Pershing Boulevard, Cheyenne, Wyoming. Pursuant to a stipulation for certification upon consent election signed by the parties and approved on April 17, 1970, by the Regional Director of Region 27 of the Board, an election was held on May 13, 1970. The employees cast 55 votes for and 68 votes against the Union. There was one challenged ballot. On May 18, 1970, the Union filed timely objections to the conduct of Respon- dent affecting the results of the election. After investigation of the objections, the Regional Director in his "Regional Director's Report on Objections, Order Directing Hearing, Order of Consolidation and Notice of Hearing" dated August 26, 1970, concluded that some of the objections should be dismissed but that others included matters which were also the subject matter of the complaint in Case 27-CA-2969 and that substantial material issues of fact and credibility had been raised by those objections which could be best resolved by a hearing. The Regional Director consolidated Cases 27-RC-3815 and 27-CA-2969 and further ordered that after hearing, ruling, and decision by the Trial Examiner Case 27-RC-3815 be transferred to the Board. On September 18, 1970, the Board adopted the 198 NLRB No. 9 MONTGOMERY WARD & CO. recommendations contained in the Regional Director's report. The hearing was held before me in Cheyenne , Wyoming, on January 5 through 8 and 19 through 22, 1971. Counsel for the General Counsel , Respondent, and Charging Party appeared at the hearing . All parties were given full opportunity to participate , to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel, the Respondent, and the Union. Issues 1. Whether Respondent violated Section 8(a)(3) of the Act by discharging Evangeline Adams and by reducing the hours of employment of Janis Penny because of their activities on behalf of the Union, and by changing the working conditions of employees to discourage activity on behalf of the Union. 2. Whether Respondent violated Section 8(a)(1) of the Act by the manner in which it carved out its antiumon campaign. 3. Whether the Union represented a majority of the employees in an appropriate unit; whether Respondent's conduct had a tendency to impede the election process; whether the election should be set aside; and whether Respondent violated Section 8(a)(5) of the Act by refusing to bargain with the Union. Upon the entire record of the case and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, an Illinois corporation with its principal offices in Illinois, has retail stores located throughout the United States, including one at 1510 Pershing Boulevard, Cheyenne, Wyoming, which is the store involved in this proceeding. At its Cheyenne store Respondent annually sells goods valued in excess of $500,000 and receives goods valued in excess of $50,000 directly from places outside the State of Wyoming. The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. 1 These findings are based on the testimony of Amen and Adams. Their testimony differed, however, in some material respects Adams testified that Amen asked her where she got the Union card and what the name of the umon was Amen testified that he did not ask her where she got the union card and she volunteered the information on her own I was impressed with the credibility of both Adams and Amen, however, I believe that Amen's recollection of the events in question was sharper than that of Adams. In testifying about conversations she had with supervisors which touched on 53 III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Discharge of Evangeline Adams 1. The events relating to the discharge Adams, who was originally hired by Respondent in April 1964, was department manager of department 33 (boys' and children's apparel) for about 2 years prior to her discharge on April 3, 1970. In mid-November 1969, Adams contacted Homer Francisco, a representative of the Union. She asked for the Union's assistance in organizing Respondent's employees. He told her that he had tried to organize them in 1967 but that he had been unsuccessful. Nevertheless she asked him to come to her house and discuss it further. About a week later they met at her house and Francisco told her that, if the employees wanted to organize, they would have to do it themselves. He gave her a number of union authorization cards. Adams took effective charge of the Union's organizational efforts at the store. She started by arranging a meeting of employees at her house for December 1, 1969. About five employees attended that meeting. There was another meeting at Adams' house and several at the union hall. During the campaign the Union funnelled 100 or 110 authorization cards through Adams. She actively recruited for the Union both at and away from the store. Much of the soliciting for the Union was in the snackbar lounge and restaurant, but on occasions she spoke to employees while they were working and reminded them to attend union meetings. About December 10 or 14, 1969, Gerald Lynn Amen, Respondent's operating manager and an admitted supervi- sor, called Adams into his office and told her that he had been informed that she had been passing union material to another employee in the store. She replied that she received some union material in the mail that she thought was funny, so she had showed it to Jerry Smith. Amen told her that she had violated company policy. Amen also told her that his experiences with a union had not been good but that she could do as she pleased provided that she did not do it on company time.' John H . Bennett is the regional employee relations manager for Respondent whose region covers the Chey- enne store. He is a supervisor within the meaning of the Act.2 In mid-December 1969, a former merchandiser,3 Matheson, told Bennett of a rumor that Adams had been handing out cards. Bennett was in the store on December 30, 1969, when Amen told him that Adams was suspected of soliciting on company time. Bennett said that he would clarify the situation at a meeting he was to have with the department managers. On the same day Bennett, Store Manager Schulte and Ben Waud from Respondent's labor relations department in Chicago, met with all the depart- ment managers who were available in the store. Schulte introduced Bennett, who did the talking. Bennett told the the ability of employee Penny to do certain alteration work, Adams displayed a hesitancy and inability to recall details I believe that Amen was a more accurate witness. 2 He can effectively recommend the discharge of employees. Bennett recommended the discharge of Adams and as Darwin J Schulte. the store manager, credibly testified, he always follows Bennett's recommendations 3 It is stipulated that merchandisers are supervisors under the Act. 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD department managers that he heard there was union activity in the store and he wanted to explain Respondent's position. He said that Respondent considered department managers to be supervisors and as such they were not allowed to sign cards or join in union activity. He explained that management is prohibited from assisting unions, that department managers as supervisors were representatives of management, that they would not be eligible to vote in the election, and that they would be excluded from any agreement that was negotiated. He pointed out that what they did was binding on manage- ment and they should not question employees but that they were able to listen to employees and answer any of their questions to the best of their ability. After making it clear to them that as supervisors they were not allowed to solicit for the Union at any time, he explained to them the Company's no-solicitation rule that applied to employees. He read to the department managers a section of Respondent's manual as follows: DISTRIBUTION OF LITERATURE AND SOLICITATION ON COMPANY TIME FOR NON-COMPANY ACTIVITIES Employees may not distribute union literature or solicit membership in unions, or fraternal, religious, social, or political organizations on company time, or while employees to whom literature is being distributed, or whose membership is being solicited, are on Company time. Company time is that time which the employee is scheduled to be on duty and for which the employee is being paid, excluding rest periods, lunch periods, and time before and after the employee's working day. Solicitation is permitted on Company property so long as the employees, both those solicited and those being solicited, are on their own time and the solicitation is conducted in a quiet and orderly manner and does not interfere with the operation of the Company's business. Bennett also told the department managers that if they saw any employee violating the no-solicitation rule they were to report it to the store manager .4 During the meeting Billie Garner, one of the department managers, questioned whether she should be considered a supervisor because she had no employee under her. Bennett said that he would talk to her after the meeting. After the meeting Bennett told her that he was not certain whether she should be considered a supervisor so that she should disregard what he had told her about department managers being supervisors. He added that the no-solicitation rule which he had read applied to her and that she could therefore solicit for or against the Union on her free time.5 On the following day, December 31, Schulte called * These findings are based on a composite of the mutually consistent testimony of Schulte, Bennett, Adams, Fresquez, and Garner, all of whom were present at this meeting. Garner testified that Bennett said that there was to be no solicitation on company time or on the selling floor Her testimony is inconsistent with that of all the other witnesses, and I do not believe it is accurate Adams testified that there was a discussion of such working conditions as 4 hours call-in pay, but I believe she was referring to a subsequent meeting, as was Garner in parts of her testimony. Fresquez testified that Bennett told them that if they signed cards they should ask for them back. Bennett specifically denied that allegation and none of the other together the department managers who had been unable to attend the first meeting and told them much of what had been said by Bennett. He said that they were supervisory personnel, that the Company wanted to comply with the law, that as management people they couldn't interfere with the employees' rights and that the employees couldn't solicit or distribute literature on company time but that they could do as they pleased on nonworking time. He also explained the no-solicitation rule as it applied to depart- ment managers, which was that they could not solicit at all. Soon after the meeting with the department managers, Schulte and Merchandisers McCarty and Matheson began making regular inspections of Adams' department (depart- ment 33). They looked at the arrangement of the merchandise, pricing and the general order of the depart- ment. This was done two or three times a week until her discharge. Prior to that time the department was only examined during inventory twice a year. Sometime after the department managers ' meeting, Schulte posted a no-solicitation rule on the bulletin boards near the timeclocks. This rule made mention only of union literature and union solicitation. It provided in substance that employees could solicit and distribute literature on company property as long as both the employees soliciting and those being solicited were on their own time. Adams had a number of conversations with Department Manager Peter C. Hendershot on company time. In February 1970 she asked him to sign a card. In early March 1970 she again mentioned the card and asked him if he knew there was a meeting that he could come to and ask questions. Again in the latter part of March she spoke to him about the Union. On or about April 2, 1970, Bennett approached Hendershot, who worked in an area near Adams, and asked him whether anyone had approached him about the Union. Hendershot replied that Adams had. Bennett asked Hendershot to put the information in a signed statement and Hendershot complied. On April 3, 1970, Bennett also spoke to Department Manager Cleo Fresquez about Adams' solicitation. Fresquez told him of an incident immediately after the department managers' meeting where Adams told her not to pay attention to what was said and that the Company was just trying to scare off the union people. At the same time Adams asked her to attend a union meeting . Fresquez also gave Bennett a statement to that effect. About 2:30 p.m. on April 3, 1970, Adams was called to the office by Schulte and Bennett. Bennett told her that his December 30 talk had been directed to her and that he had tried to tell her that she was to act on behalf of the Company but apparently she didn't pay attention. He said that he had been told by several employees that she was organizing on company time. She denied soliciting anyone on company time and asked who was making the witnesses corroborated Fresquez . I was impressed with Bennett's testimony with regard to credibility and accuracy For the reasons stated later, I did not find Fresquez to be always candid or accurate . I credit Bennett 8 This finding is based on the credited testimony of Bennett . Garner 's version of this incident was substantially the same though she averred that Bennett told her she could solicit for the Union on her own time but not on the selling floor. In the light of the written no-solicitation rule that Bennett read from, I believe Garner to be mistaken in her reference to the selling floor. MONTGOMERY WARD & CO. accusation. Bennett then read Frequez' statement to her. Bennett told her that because she was a supervisor she was subjecting the Company to unreasonable risk of unfair labor practice charges by her union solicitation. Adams replied that she didn't think she was a supervisor because she couldn't hire and fire but could dust recommend. Bennett then said that he would have to recommend to Schulte that she be terminated. Schulte said that he would have to go along with the recommendation and she was discharged. Bennett openly acknowledged that Adams was fired because of her organizing activities. He testified that there were two reasons for the discharge. The first was that as she was a supervisor, she was endangering the Company as far as unfair labor practices were concerned by her organizing activities and the second was that she had violated the no-solicitation rule. As to the second reason there is substantial grounds for skepticism. At the time of the discharge, according to Bennett and Schulte's testimo- ny, Respondent considered Adams to be a supervisor and the no-solicitation rule clearly applied only to nonsupervi- sors. There was no distinction between company and noncompany time as far as the department managers, such as Adams, were concerned. They were not allowed to engage in union activities at any time. Respondent handled rank-and-file employees who were suspected of soliciting in a very different manner. Bennett credibly testified that he had a conversation with employee Janis Penny in mid- July 1970 in which Penny said it was not true that she ever solicited on company time, to which Bennett replied, "I am not particularly interested in that aspect. I don't want to get into that." Adams was discharged because she engaged in union activities at a time when Respondent considered her to be a supervisor. The question of her supervisory status, therefore, becomes critical. 2. Adams' supervisory status As manager and chief operating officer of the Cheyenne store, Darwin J. Schulte is top man in the store's supervisory hierarchy. Operating Manager Gerald Lynn Amen is Schulte's first assistant and is responsible for all operating functions. Merchandisers Bob McCarty and Larry Douglas, and Credit Manager Roger Snodgrass, who are classified as staff personnel, are directly below Amen. The store is divided into 40 separate departments which are manned by some 128 people of whom about 29 are designated as department heads. The two merchandisers divide the selling departments between them. They are responsible for the workings of departments and the department managers work under their direction. Respondent contends that all department managers are supervisors within the meaning of the Act. Schulte testified that department managers actively participate in the hiring, transferring, and disciplining of, assigning work to, and granting time off and recommending wage increases for employees. However. it is manifestly clear that different department managers were given and exercised different levels of responsibility and authority. Thus, within the 6 John Adans, $90 draw, Donald Frederickson, $125, Rodney Havens, $110, George Jackson, $130, Bruce Mitchell, $90 draw plus substantial commission , Francis Kenney, $135, Alton Massey, $90 draw plus 55 category of manager is included people with as diverse authority as Auto Service Manager McGuinnis, Sporting Goods and Camera Department Manager Stevens, and Giftware and China Department Manager Garner. McGu- innis is exempt from the overtime provisions of the wage and hour law because he supervises people for a certain number of hours per week and makes over $100 per week. He has about eight employees under him, and has hired and fired a number of employees. Stevens has one full-time employee in his department, plus part-time employees when they are needed, but he has interviewed some 60 or 70 applicants for employment with eight out of nine of his hire recommendations and all of his no-hire recommenda- tions being followed. Garner is the only person working in her department and does not have and has never had anyone working with her so that she has never interviewed, laid off, hired, fired, disciplined, or had any other authority over employees. As the generic title department manager gives little guidance, the specific authorities, responsibili- ties, and duties of Adams must be evaluated to determine whether she was a supervisor within the meaning of the Act. During the 2 years that Adams was manager of department 33, her duties included selling in her depart- ment and the departments around her, counting basics (a system of keeping inventory), checking the records to determine what had been ordered, what was corning in and what was on hand, keeping up a "buy book" (which was checked by the merchandiser and then used in the process of ordering new merchandise), making suggestions on promotions in newspaper ads, helping with displays, checking prices, and housekeeping chores such as straight- ening and dusting. Her fringe benefits, such as discount on purchases, group insurance, and profit-sharing plan, were the same as the full-time sales personnel and she punched the timeclock. She was on salary while the salespeople were hourly rated, but her salary was based on an hourly rate and if she worked less than 40 hours, she was only paid for the time worked. Her pay from January 16, 1969, through July 31, 1969, was based on an hourly rate of $1.75 an hour or $70 a week plus a I-percent override on all sales made in her department. Effective July 31, 1969, her pay was raised to an hourly rate of $1.85 per hour or $74 per week with the same override. The override varied substantially depending on the season. Thus, her monthly override paid the week ending December 31, 1969, was $88.14 and the monthly override paid the week ending January 28 was $24.63. There were a number of nondepartment managers in the store who earned more than she did .6 Adams also worked on a markdown budget. She would go over the amount of merchandise that could be marked down with her merchandiser and the proposed budget- would then be sent to Schulte for his approval or disapproval. She attended two department manager meet- ings a week. Each Saturday morning the department managers met with Schulte who went over matters relating to the operation of the store, such as budgets, coming events, and promotions. Training material was also passed substantial commission, Abel Rivera, $120; Ronald White, $90 plus substantial commission, and Clyde Wells, $ 90 plus substantial commission 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD out atl such times. Thatlmaterial was discussed oni Mondays at department manager meetings with Merchandiser Matheson. At the Monday meetings the department manager's manual was discussed. After the meeting the material was taken back to the employees in the depart- ment who would read it and sign it. She also attended department manager meetings in Denver, Colorado, twice a year. At those meetings the store buyers introduced merchandise that would be coming in. The department managers were asked whether they thought the new material would sell well. Adams had some responsibility with respect to making out work schedules. Depending on sales and standard selling costs, each department is given a certain number of dollars that can be allocated for payroll. That amount is used to determine the number of hours that can be worked in a particular department for the month. The department manager first schedules her own 40 hours against the budgeted number of hours and the remaining time can be allocated to salespeople by the department manager depending on the needs of the department. The amount of hours allocated to Adams' department was small and as a result a good deal of the time she was alone in her department. The store is open some 66 hours a week and, as Adams only worked 40 hours a week, she had to fill out the work schedule so that her department would be covered dunng her lunches, breaks, and the approximately 26 hours a week when the store was open and she was not on duty. Adams, collaborated with Hendershot who was manager of departments 39 and 42 and with Whitechurch who was manager of department 35 because they shared the services of employee Lenora Rebillet. The three department managers would get together, fill in their own hours and then assign the remaining number of hours that they had allocated to them. The schedule would then be sent to Amen who frequently changed it. Respondent's personnel sales and productivity summary shows the following hours worked in Adams' department: October 1969-Adams 160, Rebillet 42, Barnes 8, and Leamaster 15; November-Adams 193, Rebillet 177, Grizzard 15, and Leamaster 7; December-Adams 172, Rebillet 146, No- decker 34, and Carpenter 44; January 1970-Adams 162, Rebillet 49, Grizzard 3; February-Adams 193, Rebillet 65; and March-Adams 131, Rebillet 77, Finch 3. Extra employees came into Adams' department (33) dunng peak seasons such as the Christmas rush, but during normal times Adams worked alone and Rebillet filled in when she was not there. If neither of them was on hand to cover the department, someone from another department would take over. r Schulte testified that all department managers, including Adams, have the authority to interview the employees, discipline employees, grant time off without higher approval, and are consulted about transfers affecting their departments. Though she may have had the abstract authority in these matters, it appears that neither she nor the employees were told of this authority and I credit her assertion that she did not exercise it Schulte testified that he talked to department managers in November 1969 and told them they were responsible for hiring, firing, and training their people, making appraisals, and recommending salary increases None of the department managers who testified corroborated Schulte in this regard, though Department Manager Gano testified that management told them they were responsible for the girls who worked under them , and Department Manager Christiansen testified that they were told by Schulte at a Adams credibly testified that she never interviewed any prospective applicant for a job. Adams did not know how Rebillet was originally hired before she was transferred to Adams' department. No one ever asked Adams whether Rebillet was acceptable to her and she had nothing to do with the transfer. She also credibly testified that she never hired, laid off, or fired anyone, never disciplined employ- ees, never excused tardiness or absence, and never approved vacations . As to vacations a paper was circulated from the head office and everyone put down the time that she wanted off. The paper then went to Amen who approved or disapproved the schedule. She also credibly testified that Schulte never told the department managers that they had the right to hire or fire .? However, Adams was instrumental in procuring jobs with Respondent for a number of employees even though she was never told that she had a right to recommend employment . She also evaluated the work of an employee and recommended a wage increase. Adams appraised the work of and recommended a raise for Rebillet. She handed a performance review form that she had filled out to Matheson on March 9, 1970. Matheson told her that she had rated Rebillet too high in one regard and should add additional comments so she changed the appraisal and turned in the form. The final review which was dated April 3, 1970, led to a raise in Rebillet's pay of 10 cents an hour . The only other evidence that Adams had participated in evaluation of an employee was contained in the testimony of Amen . He averred that Adams had some contact with Sales Clerk Glenda Ausburn the week after Christmas 1969, that he asked Adams what kind of job Ausburn was doing , and that Adams replied that her work was excellent. Amen , instead of laying Ausburn off after Christmas, retained her as a sales clerk in a different department. Adams was instrumental in the transfer of one employee and in the hire of four others. Terry Benton was a sales clerk in department -71. In September 1969, Adams approached Amen and told him that she would like to have Benton transferred to her department. Amen told her that her budgeted hours were limited but at a later date Benton was transferred to Adams' department. In August 1969 Adams spoke to Amen about the employment of her son, John Adams. She told Amen that she heard there was a vacancy in the auto department, that her son would like to work for Wards, and that she thought he would do a good job. Amen told her to have her son come in and subsequently he was hired in the auto department.8 In November 1969 Adams told Amen that Kathy Carpenter was an experienced salesperson , that Carpenter was going department managers' meeting in December that if the employees under them weren't doing a good job they should get someone else who would. I do not credit Schulte's testimony in this regard As pointed out below, I do not believe that he was always candid in his testimony. Garner testified that at one meeting Schulte said that only he had the right to hire and fire, but Schulte credibly put that in the context of a situation where department managers were afraid to go over the heads of their merchandisers directly to him and he told them in effect that they would be protected because only he had the right to hire or fire department managers 8 Amen acknowledged that Roy Wells, a commission salesman, had also asked about ajob for his son. MONTGOMERY WARD & CO. to be available for employment, and that she wanted her in department 33. On December 24, 1969, Carpenter was hired and worked in departments 33, 35, 39, and 42. (Company records show she worked in department 33 for 44 hours in December 1969 and not at all in January, February, March, or April, 1970.) In March 1970 Adams told Amen that she needed additional coverage in the evening and he replied that Finch was available but he didn't think much of Finch's sales ability. Adams replied that she thought he was all right and he was hired in department 33. (Company records show that Finch worked in department 33 for 3 hours during the month of March 1970 and did not work any hours thereafter during the month of April.) In September or October 1969, Adams told Amen that Virginia Leamaster, who had previously worked in the store, was looking for work. Leamaster was hired and worked in department 33 (company records show Leamaster worked 15 hours during October 1969, 7 hours during November, and no hours during December, January, February, March, or April, 1970). Though Adams sold in different departments, any authority that she had with relation to employees was limited to department 33. Schulte credibly testified that the department managers have no authority with respect to employees in departments other than their own even when there is no department manager working in that other department. 3. Analysis and conclusions with regard to the discharge of Adams and the December 30 and 31 meetings a. The discharge Respondent admits that Adams was discharged because of her activity in organizing for the Union. Respondent's alternate reason, that she was discharged for violating a no-solicitation rule, is not convincing in the light of Bennett's casual attitude toward another potential violator of the same rule. At any rate, Adams' union activity was not only a substantial and motivating reason for the discharge,9 but was the dominant reason. An employer violates Section 8(a)(1) and (3) of the Act when it discharges an employee for such a reason. On the other hand, an employer may, without violating the Act, discharge a supervisor for engaging in union activity. General Counsel and the Charging Party contend that Adams was an employee. Respondent argues that she was a supervisor. Adams punched a timeclock and was paid on the basis of the number of hours that she actually worked. She sold merchandise and her duties with regard to counting basics, keeping inventory, checking orders, keeping the buy book, helping with promotions, pricing, and displays all related to duties that are directly tied to her sales function. None of them indicate any authority over employees. Her attendance at department managers' meetings and the Denver conferences also fail to indicate any supervisory 9 See N LR B v. Whinn Machine Works, 204 F 2d 883 (C A 1) 10 "The term 'supervisor' means any individual who, having authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or 57 role over employees except to the extent that she trained employees by passing on matters she had learned at the meetings. However, such training or instruction does not amount to supervision. Wonderknit Corporation, 123 NLRB 53. Although Adams was paid an override on sales in her department, her total pay, including the override , was less than many of the employees in other departments , and was not so high in itself that it could be inferred that Respondent was paying her to supervise other employees. Schulte testified that all the department managers had broad supervisory powers , but such powers in a vacuum are meaningless. As the Court of Appeals for the Fourth Circuit said in N.LR. B. v. Southern Bleachery and Print Works, Inc., 257 F.2d 235 (C.A. 4): ... the employer cannot make a supervisor out of a rank and file employee simply by giving him the title and theoretical power to perform one or more of the enumerated supervisory functions. The important thing is the possession and exercise of actual supervisory duties and authorities and not the formal title. It is a question of fact in every case as to whether the individual is merely a superior workman or lead man who exercises the control of a skilled worker over less capable employees, or is a supervisor who shares the power of management. The same theme was stressed by the Fifth Circuit in Ross Porta-Plant, Inc. v. N.L.R.B., 404 F.2d 1180 (C.A. 5), where the court stated: In enacting Section 2( 11) of the Act Congress did not intend to exclude from its protection any individuals except those who possess true managerial powers. This section is designed to apply to supervisors with genuine management prerogatives as distinguished from "straw bosses, leadmen, set-up men and other minor supervi- sory employees." S. Rep. No. 105 on S . 1126, 80th Cong., 1st Sess., page 4. The company's designation of these employees as "department heads," "assistant foreman," or "foremen," is not controlling in the absence of delegation to them of bona fide managerial powers. The indicia of supervisory status contained in Section 2(11) of the Act 10 are set forth disjunctively , N.L.R.B. v. Budd Mfg. Co., 169 F.2d 571 (C.A. 6), and it therefore must be determined whether Adams meets any of these indicia. Adams did participate in the preparation of work schedules. She, Hendershot, and Whitechurch would get together and schedule in their own hours and then assign the remaining number of hours in each of their quotas to employees. These schedules were subject to review by Amen who frequently changed them . However, except during peak seasons, such as Christmas, Adams ' schedul- ing role amounted to seeing to it that the department was covered when she was not there. During Adams ' 2-year tenure as department manager , she had only one occasion to evaluate an employee. Even that one evaluation was sent back to her by Matheson who told her to change it. The evaluation did contain a recommendation for a wage responsibly to direct them , or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature , but requires the use of independent judgment." 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD increase and the increase was given. In addition, on another occasion Amen did ask Adams what kind of job an employee was doing, but that was the type of question that could have been asked of any coemployee. During the 2 years, Adams had occasion to ask for the transfer of one employee. She asked Amen if Benton could be transferred to her department and eventually the transfer was effected. She also had something to do with the hire of four employees. She told Amen that her son would like to work for Wards; she told Amen that Carpenter was available for employment and that she wanted her in department 33; she told Amen that she needed additional help in her department and that she thought Finch would be all right; and she told Amen that Leamaster was looking for work. All four were hired and all but her son did some work in her department. The incident with regard to Adams' son can be discounted. Adams had no authority outside of her department and the son was not hired for her department. In addition, at least one nondepartment manager employee had asked Amen for a job for that employee's son. It was the type of thing that either an employee or supervisor might do. At first glance, the other three incidents do appear to indicate that Adams did have and exercised authority to effectively recommend the hire of employees. However, all the indicia of supervisory authority set forth in the statute are keyed to the relationship between the supervisor and employees. There is a point at which an alleged supervisor's contact with the employees becomes so minimal that an unduly strict interpretation of the Act would lead to meaningless results. A mechanistic reading of the statute might lead to the conclusion in a hypothetical case where 100 production employees in a plant would have to be considered supervisors because they were each given final authonty to discharge two helpers who assisted them in their tasks. Respondent has created a system under which a large number of persons who are designated as department managers have alleged supervisory powers over a number of part-time employees. The department managers are told that it is desirable to use from 60 to 65 percent part-time people.[[ No matter what the motivation for the creation of this system, the result can be that an employee with no supervisory duties takes the label of a department manager and, in the view of Respondent, is removed from the protection of the Act. Thus, Garner, who has no duties at all with relation to other employees, is a department manager and therefore under Respondent's prototype a supervisor. Unlike Garner, Adams does have some duties with respect to employees. The question is whether these duties are meaningful and far reaching enough to warrant the conclusion that she is a supervisor. She customarily works alone in her department. Except during peak seasons the only other employee who works in the department is there when she is not. In October 1969 Rebillet, Barns, and Leamaster worked in her department for a total of 65 hours. If Adams were a supervisor using independent judgment to responsibly direct the work force, her total work force for that month in terms of a regular 40-hour week would have been between one-third and one- half of one employee, a somewhat unusual supervisor- employee ratio. In December 1969 during the Christmas rush, employees other than Adams worked a total of 224 hours in her department, still not an impressive supervisor- employee ratio. By January 1970 employees other than Adams worked 52 hours in her department so she allegedly supervised less than one-third of one employee. Viewing all these factors, I conclude that Adams was a saleslady with such marginal, sporadic, and inconsequential supervisory duties that it would do violence to the purposes of the Act to hold her union activity was unprotected because she had supervisory status. I find that Adams was an employee and not a supervisor within the meaning of the Act.12 As Adams was an employee, she was protected by the Act when she undertook her activities on behalf of the Union and therefore Respondent violated Section 8(a)(1) and (3) of the Act by discharging her for those activities. b. The December 30 and 31, 1969, meetings The General Counsel argues that a number of statements made by Bennett or Schulte during the December 30 or 31 meetings with department managers violated the Act. As I have found that some of the department managers who were present at the meeting, including Adams and Garner, were employees within the meaning of the Act, Bennett violated Section 8(a)(1) of the Act by telling and in effect warning them that they were not allowed to solicit for the Union, sign union authorization cards, or join in union activity. These employees had the right to engage in such activity; that right was protected under Section 7 of the Act; and Respondent through Bennett interfered with that right in violation of Section 8(a)(1). This interference was very real as Adams was subsequently discharged because she did engage in union activities. The credited evidence does not establish that Bennett or Schulte violated the Act by any other part of their speeches on those days. B. The Reduction in Hours of Janis Penny 1. The events Respondent hired Penny on September 17, 1968. She is the seamstress who does all the alterations on garments sold in the store. In addition, she mends stock that need repair. From the time of her hire until February 5, 1970, she performed a good deal of miscellaneous bookkeeping work and did many odd jobs in addition to her alteration work. Penny was one of the early activists for the Union. She began talking to the employees about November 26, 1969. In early December she solicited authorization cards for the Union. Some of the employees signed cards in her alteration room. She herself signed a card on December 6. Some of Penny's solicitations of employees took place on company time and property, but shortly after the depart- ment managers' meeting of December 30 she stopped 11 See Resp Exh I, Department Manager Manual-Personnel and Lampcraft Industries, 127 NLRB 92 Respondent urges in its brief that the Training, p 2 Board's Decision in Montgomery Ward Co, Inc, 187 NLRB No 126, 12 Cf Montgomery Ward, 93 NLRB 640, enfd as modified 192 F 2d 160 indicates that Adams should in this case be found to be a supervisor (C A 2), Wood Manufacturing Company, 95 NLRB 633; Quick Shop However, the facts in that case are not set out in sufficient detail to allow an Markets, Inc, 168 NLRB 180; The Ohio Power Company, 80 NLRB 582; accurate comparison of the two situations. MONTGOMERY WARD & CO. 59 soliciting on company time, and limited her activities to coffeebreaks, lunchbreaks, and before and after working hours. Penny attended about five union meetings and on occasions picked up other employees and took them to the meetings. In early December 1969, Department Managers Hender- shot and Adams were approached on the selling floor by Maddie Orson who said she was looking for part-time alteration work. Hendershot spoke to her and directed her to the personnel office so that she could make out an application. He wanted to have her name on file in case they needed an alteration lady. Also in early December, Amen received a complaint about alterations from a customer. He followed it up by talking to Department Managers Anderson, Hendershot, and Adams, all of whom sold garments that had to be altered by Penny. Hendershot told Amen that there were numerous complaints, many garments had to be realtered, and in his opinion Penny's work was not satisfactory. Adams also told Amen that she had problems with alterations. Adams told Amen about Maddie Orson and Amen told her to call Orson in. Adams mentioned the problem of Penny working too many areas for too many people so that she couldn't do a good job with alterations.13 On another occasion Hendershot and Adams showed Amen some faulty work that had been done by Penny. On December 17 Orson applied for the job and was told to report for work on December 26, 1969. On December 24, 2 days before Orson was scheduled to report for work, Amen called Penny into his office about 4 p.m. and told her that he was going to have to replace her because of complaints about her work. She asked who was complaining and he answered Anderson, Adams, and Hendershot. She com- plained that Hendershot should have spoken to her if he had a complaint and asked Amen if she could call Hendershot in.14 Hendershot then joined them and he confronted Penny with three specific instances of customer complaints. Penny maintained that the mistakes in all three situations were made by those who marked the clothing for alteration and she had done nothing wrong. She also said that she wasn't allowed enough time to do her alteration work and that it was unfair to fire her when no one from management had ever talked to her about her work before. Amen had never held a corrective interview with Penny prior to this time, even though such an interview was the customary procedure. After some further discussion, Amen said that there appeared to have been a lack of communi- cation and that he would put her on a 30-day probation and evaluate her at the end of that time. Penny said that 13 These findings are based on the testimony of Amen , Hendershot, and Adams. Adams averred that she agreed with Hendershot that some of Penny's work wasn't as good as it should have been and that she probably told this to Amen. Though she testified that she did not agree that Penny should be replaced with Orson, she did not deny that she had raised Orson's name 14 Penny testified that before Hendershot came into the office she told Amen that he could terminate her but he could not do it because she was working for the Union Amen flatly denied Penny's assertion and averred that nothing was said about the Union . I credit Amen who impressed me as a truthful and candid witness There is no evidence that at the time of this conversation Amen had any knowledge that Penny was active on behalf of the Union and it is difficult to believe that Penny would have raised it in the she would try to do better work. The plans to hire Orson at that time were canceled. When the probationary month had passed, Amen asked Hendershot how Penny's work was going and he replied that it had improved. Amen also asked Adams her opinion and she agreed that Penny's work had improved but said that the biggest problem with the quality of Penny's work was that she didn't have time to complete one thing before going on to another. At that time Penny was receiving merchandise, working on catalog orders, and performing a number of duties unrelated to alteration work.is On February 5, 1970, Amen met with Penny in his office. He showed her and had her sign an evaluation on which her amount of productivity, accuracy, neatness, and thorough- ness were marked less than satisfactory but her "coopera- tion" was marked more than satisfactory. The comment on the form indicated that quality was not good even though she had the ability. Her current overall status was marked satisfactory.16 He also took her off probation and gave her a 10-cent-an-hour raise. However, after explaining that he thought she would do a better job if she spent her time strictly on alterations, he told her that she would do nothing but alteration work and her hours would be cut to 20 a week from the 40 she had been working.i7 Penny has been able to keep substantially current on the alteration work with her 20-hour schedule and it has never been necessary to contract out any of that work. Sometime between the February 5 meeting with Amen and June 1970, Penny heard there was a full-time opening in the receiving department. She went to Amen and asked whether she could have that job. At the time there were two full-time employees working there as marker checkers. He declined her request, saying that the opening would only be for a part-time job because they were only going to have one full-time and one part-time marker checker. Penny credibly testified that at the time of the trial there were two full-time marker checkers. For 6 or 7 weeks starting in June 1970, Penny worked in the receiving room where one of the employees was on vacation and the merchandise had accumulated because of a Teamsters' strike. During that time, Orson filled in for her on alterations. Penny also worked at or near full-time during November and early December 1970 when the Christmas merchandise began to come in. She helped with the unpacking and also with the selling. The charge which alleged that Penny's hours were reduced because of her union activity was filed on May 18, 1970. In the middle of July, Bennett called Penny into the advertising room and told her that he would like to talk to her about the charge. He also told her that she was under context of this conversation where she was trying to convince him that she was a good worker and should be retained. 15 Adams' tes.imony concerning this conversation was extremely vague When asked whether she recalled telling Amen that Penny's work had improved, Adams answered that Penny's work had improved. When the same question was pursued, she answered that she probably did but she didn't recall. 16 Penny testified that this evaluation rated her work "good " 17 Penny testified that Amen also told her that he hoped she could stay on with the 20 hours but he didn't know whether she would be able to manage it with her five children Amen denied any such remark and averred that he didn' t even know at the time that she had five children . I credit Amen. 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no obligation to talk to him and whether or not she decided to speak to him would not affect her employment. She told him that at the December 24 meeting Amen had threat- ened to replace her because of unfounded charges about her work, that she was placed on probation and then taken off but her hours were cut, and that she didn't think it was fair. He asked her why she thought that it was connected with the Union and she replied that it was well known that she was one of the organizers and she felt that people such as Fresquez and Hendershot kept watching her. She told Bennett that every time she talked to Adams in the alteration room, Fresquez reported it to Schulte on the phone and that she knew because she could hear the digits on the phone that Fresquez used to dial.18 On September 2, 1970, Schulte called Penny into his office to complain about work that she had done on a suit that he had purchased. Amen, who is responsible for all nonselling areas of the store, was also called in. Schulte complained about the poor pressingjob on his suit and she replied that the equipment didn't work. Schulte said he would get the equipment fixed. Amen credibly testified that they also discussed the matters set out in a corrective review report which was signed by Penny, Amen, and Schulte and dated September 2, 1970. That memo mentioned various complaints about her work, the number of hours she needed for alteration work, and how she could get assistants.19 Penny's suspicion that she was being watched and that the digits she heard being dialed by Fresquez belonged to Schulte are insufficient to establish that Respondent had knowledge of her union activities before the tentative decision to discharge her in December 1969. There is no probative evidence in the record that Respondent did have such knowledge at the time of Amen's December 24 conversation with Penny. However, Fresquez did testify that she transmitted certain information to Schulte between that time and February 5, 1970, when Amen reduced Penny's hours from 40 to 20. That testimony bears scrutiny. She testified as follows: Immediately after the December 30, 1969, meeting with department managers, she told Adams that she was afraid for her job and Adams said that Bennett had only been sent there to scare them. A few days later she went into Schulte's office and told him that she had signed a union card. He asked her who gave her the card, who was present, and where she signed it. She replied that Adams had given her the card and she had signed it in the seamstresses' room in the presence of 18 Penny testified that Bennett asked her to sign a statement and she complied Bennett denied taking a written statement from Penny I credit Bennett. 18 The text of the memo was It again became necessary for Mr. Schulte to call in Jannis [sic I Penny for a personal Corrective Interview The areas of discussion were as follows. 1. Quality of work performed Mr. Schulte discussed at length the complaints received by Nell Anderson, Pete Hendershot, Mr Clayton, Dist Mdser, That were due to the quality of work that she has put out during past months. Specific example was Mr Schulte's suit and the condition it was turned out by Jannis Penny Another example is the quality of work performed on Mr. Amen's suits altered by Jannis Penny 2. Improvement of productivity It was brought out by Mr Amen and Mr Schulte and admitted Rebillet and Penny. He told her that he appreciated her coming in and being honest with him and he hoped that if there were others who had signed that they would do the same. He also told her that she should send a registered letter to the Union to have them return her card. He asked her if she had seen Adams, Penny, or Rebillet passing any other cards in the store and she replied that she had not. As she was leaving, he asked her to keep him posted. On another occasion there was a meeting in the office when he asked her if Adams had been talking to her about the Union any more. Sometime in January 1970, Schulte came into her department and asked her how things were going. She told him that Penny had told her there was a union meeting that night at the union hall and he replied, "It might be well worth the while to drive up there." He told her to keep up the good work and walked off. There was still another conversation with Schulte in his office in February or March when Schulte asked whether she heard any more about the union activity and whether she knew who signed union cards. She told him that Penny, Adams, and a number of other people had signed cards. He thanked her and told her that he appreciated her helping him out. On several occasions she called Amen to tell him that there was a union representative in the store. On April 3, 1970, which was the day that she was discharged, Schulte asked her whether she had seen Penny or Rebillet passing union cards throughout the store. She answered that she had not.20 Schulte specifically denied ever telling an employee or department manager anything about driving by a union meeting. He also denied that he told her to withdraw her union card. He acknowledged that Fresquez came into his office sometime shortly after the December 30 department managers' meeting and told him that she had signed a union card. He avers that she also told him that she was going to call the Union to cancel it and asked him whether there was anything else she could do. He then told her that she might want to send a certified letter but that would be up to her. When his attention was directed to January 1970 (presumably his conversation with Fresquez), Schulte testified that he did not recall a conversation with any employee in which he questioned or otherwise interrogated the employee with respect to that person or any other employee's union activities. I do not believe that Schulte was always a completely candid witness. However, most of Schulte's testimony was direct, straightforward, and quite believable. On the other to by Jannis Penny many weeks only require 10 firs for Alteration work. The balance of workweek employee should assist Nel Anderson and Mert Willoby in pricing and putting mdse away If she still has extra time on her hands to get to Mr. Amen for additional assignments. 3. Concern for performance It was also brought out that she must be concerned enough to see that these areas are corrected and that if she requires assistance she is to get with Mr Amen and Mr Schulte for such assistance 20 During the interview, she gave Bennett a statement saying that Adams had asked her to attend a union meeting when they were leaving the December 30 meeting. In its brief Respondent points to the fact that this interview took place after Fresquez had been discharged and that therefore she was not an employee at the time I find that argument unpersuasive. The entire incident took place during the termination interview. MONTGOMERY WARD & CO. 61 hand, my observation of Fresquez as she testified led me to the conclusion that very little reliance could be placed on her testimony. She had been discharged under something of an emotionally charged cloud (unrelated to any protected activity) and she appeared to be so biased and bitter against Respondent that I believe she was more interested in furthering a personal vendetta than in helping to illuminate the true facts. I am reluctant to accept Fresquez' testimony unless independently corroborated and where, as here, that testimony was contradicted by Schulte whose testimony I believe to be more credible than hers, I am unable to give credence to her assertions. With regard to these alleged conversations between Schulte and Fresquez I therefore find that the General Counsel has proved by credible evidence only that Fresquez volun- teered to Schulte the information that she had signed the union card and that she was going to call the Union and cancel it, and that Schulte told her she might want to send a certified letter when she asked him if there was anything else she could do. Amen was the supervisor who originally decided to terminate Penny, who put her on probation, and who ultimately reduced her hours of work from 40 to 20. He testified that he did not know that she was active on behalf of the Union until he saw her as an observer in the union election on May 13, 1970. Amen impressed me as a thorough, conscientious, and truthful witness. In the absence of any credible evidence to shed doubt on his assertion, I credit him. 2. Analysis and conclusions as to Penny a. The reduction in hours The General Counsel contends that Respondent violated Section 8(a)(1) and (3) of the Act by reducing Penny's workweek because she engaged in protected activities. Respondent bore an animus toward the Union. Penny was active on behalf of the Union. She signed a card herself, solicited others to sign, and had cards signed in her alteration room. In addition, she attended meetings and took other employees to meetings . Within a short time after her organizing activity began she was selected for discharge and then put on probation. After a month's probation she was reduced from 40 to 20 hours a week. Subsequently her application for full-time work in the receiving department was denied. However , I do not believe that the General Counsel has established by a preponderance of the credible evidence that Penny's ill fortune was usually connected to her union activity. The first difficulty is a lack of credible evidence that Respon- dent was aware of her protected activity . There is no evidence of knowledge as of the December 24 meeting when Penny's difficulties began and she was placed on probation. I do not credit Penny's assertion that after she was told she was to be discharged she volunteered information about her union activity . I am also unable to credit Fresquez' assertion that she told Schulte in early January 1970 that she had signed an authorization card in the seamstresses' room in the presence of Penny. I was impressed with Amen's credibility and I believe him when he testified that he had no knowledge that Penny was active on behalf of the Union until the date of the election when she was an observer. Amen was the one who decided to reduce her hours. The Board has held : "Unquestiona- bly, knowledge by the Respondents of the dischargees' union activity is a prerequisite to a finding that the discharges were made for that reason , and the General Counsel has the burden of proving this knowledge beyond mere suspicion or surmise," Mook Weiss Meat Packing Company, 160 NLRB 546. See also Kayser-Roth Hosiery Co., Inc., 166 NLRB 372. The record does not establish that Penny's union activities were carried out in such a manner or at such times that in the normal course of events Respondent would have had to notice them, so as to warrant the inference of company knowledge under the Board's so-called "small plant doctrine." Weiss Plow Welding Co., Inc., 123 NLRB 616; Hadley Manufacturing Corporation, 108 NLRB 1641; Saxon Paint Stores, Inc., 160 NLRB 1757. Even if knowledge of Penny's union activities could be inferred to Respondent , the General Counsel's argument would be in difficulty. With proof of such knowledge General Counsel would have a prima facie case. But I believe Respondent's defense is sufficient to rebut it. Penny was in fact having difficulty with her alteration work. Amen did receive complaints and Adams herself, who was the spearhead of the union drive and obviously sympathetic to Penny, told Amen that she had problems with alterations. Adams even mentioned to Amen the name of Orson, the girl who was to be broughtl in to replace Penny. At the December 24 meeting with Penny, Amen changed his tentative decision to discharge her and he gave her another chance on probation . Adams had said that Penny's problem was that she worked too many areas for too many people so that she couldn't do a good job on alterations and Amen's decision at the end of the probationary period to put Penny on a 20-hour schedule to do only alteration work was not so unrelated to ordinary business considerations that an inference could be drawn that it was keyed to Penny's union activity . Subsequently, there were other complaints about Penny's work but Respondent took no action other than talking to her about them. I find that the General Counsel has not proved by a preponderance of the credible evidence that Penny was discharged in violation of the Act. b. The Fresquez conversations General Counsel contends that Respondent through Schulte violated Section 8(a)(1) of the Act on a number of occasions with regard to conversations with Fresquez. Based on my credibility findings, which are set forth in detail above, I am unable to find that Respondent violated the Act through any of these conversations. C. Additional Incidents That Allegedly Violated Section 8(a)(1) of the Act 1. The no-solicitation rule-facts and conclusions As set forth above, on December 30, 1969, Bennett notified the department managers that Respondent had a no-solicitation rule that prohibited employees from distrib- 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD uting union literature or soliciting membership in unions or fraternal, religious, social, or political organizations on company time, but that allowed employees to engage in such activity on company property. Sometime thereafter Schulte posted on the bulletin board a similar notice which allowed employees to solicit on company property but not company time. This notice, however, applied only to union literature and solicitation. Except for Adams, the depart- ment managers had not been told about the no-solicitation rule prior to the December 30 meeting with Bennett21 and some employees credibly testified that they did not know about the rule until they saw it posted in mid-April 1970. However, many employees knew that they were not supposed to engage in union activity on company time. Adams told as much to Rebillet in mid-December and employee Lucille Galka was told at a union meeting that she was not to solicit for the Union on company time. Respondent has never put a limitation on solicitation for the "Sunshine Fund" type of gift or for charities such as United Fund. Supervisors have solicited employees for contributions to United Fund on company time. In addition, collections are often taken on company time to pay for presents for departing employees, wedding gifts, and the like. Contributions were even gathered at one time for a present for Schulte. Neither the General Counsel nor the Charging Party contends that the Respondent's no-solicitation rule is unlawful on its face. A rule which prohibits union activity on worktime is presumed to be valid but this presumption can be overcome by a showing that the rule was not promulgated in furtherance of the employer's legitimate business needs but was for the purpose of interfering with the rights of employees to organize, In the instant case the rule may have existed prior to the Union's organizational drive but the employees were not notified of its existence nor was it in any way enforced prior to the drive. It was at the very least repromulgated after the drive began. It was put into effect in mid-December when Amen warned Adams about soliciting on company time; it was brought up again when Bennett and Schulte addressed the store managers on December 30 and 31; it was subsequently posted for employees to read in a form that applied only to union solicitation; and it was used as one of the reasons for firing Adams on April 3, 1970. While enforcing the no- solicitation rule against the union activity, Respondent not only closed an eye to but had supervisors participate in widespread solicitations for gifts and charities. In Hoisery Corporation of America, 175 NLRB No. 31, enforcement denied 422 F.2d 784 (C.A. 7), an employer posted a no-solicitation rule that prohibited union activity on working time. That employer permitted collections for a "flower fund," the selling of hoisery, and allowed talking about other subjects during working time. The Board found that the presumption of the validity of the rule had been rebutted by a showing that the rule was not promulgated until the advent of the union organization, that the rule on its face prohibited only union organization, 21 Adams became aware of the rule even before the Bennett meeting through her conversation with Amen in mid -December 1969 as described above. 22 Galka testified that Schulte said that he was not for the Union, that the store had made good progress , and that if the Union got in the progress and that the employer allowed solicitations of other kinds during working time. The Board further held that in such circumstances it was incumbent on the employer to show that the rule was legitimately required for business purposes. Though the Seventh Circuit Court of Appeals refused to enforce the Board's Order and specifically rejected the Board's rationale with regard to the no- solicitation rule, I am bound by the Board's decision. In E.D.S. Service Corporation, 187 NLRB No. 92, the Board held: "We agree with the Trial Examiner's finding that application of the no-solicitation rule to Coker's union solicitation, while not applying it to numerous and extensive instances of solicitation for other purposes, was clearly disparate and discriminatory." See also Sanford Finishing Corporation, 175 NLRB No. 60; Lou DeYoung's Market Basket, Inc., 159 NLRB 854 (see 181 NLRB No. 10, for subsequent changes on other grounds). I believe that the above-cited cases are controlling and therefore I find that Respondent violated Section 8(a)(1) of the Act by discriminatorily enforcing a rule against solicitation for the Union. 2. The meetings of May 7 and 8, 1970-facts and conclusions On May 7 and 8, Schulte and Bennett met with seven different groups of employees in the training room. The meetings were staggered to allow some employees to remain on duty. Eight different employees or department managers testified about what was said at these meetings and each heard something slightly different. None of them impressed me with having an exceptionally accurate memory. Bennett also testified in detail concerning these meetings. Substantial parts of Bennett's testimony were corroborated by the other witnesses and I was extremely impressed by his ability to remember the details of the meetings. I find him to be a credible witness and I accept his version of those meetings. Schulte opened each meeting by introducing Bennett and telling the employees that he personally opposed organization and did not think that the Union would be a good thing for the store.22 Bennett then took over the meeting and explained to the employees the details of the pending election. He told them that on the 13th they would be given time off in order to vote and explained to them about the voting booth and the secret ballot. He then said that the purpose of the meeting was to answer any questions that the employees might have. The employees raised a great number of questions relating to employment during the meetings. Bennett was asked about the company benefit programs, wage policies, retirement plan, group insurance, eligibility for different programs, miscellaneous working conditions, the retirement plan, and the Wyoming right-to-work law. He attempted to answer all the questions. The question with regard to the retirement plan related to eligibility and he answered that an employee had to be on the payroll for 5 years to be eligible and that the plan was a contributory one. An would slow down. Schulte acknowledged that he told the employees that he personally opposed the Union and Bennett recalled that Schulte also said that he didn't think the Union would be a good thing for the store I believe that Bennett's recollection of Schulte 's actual words was clearer than Galka's MONTGOMERY WARD & CO. 63 employee raised a question as to whether she could be called in for less than 4 hours scheduled work and he answered the company policy was that the normal minimum shift was 4 hours. At a number of meetings employees asked about the less than 4-hour shift and each time he answered that the company policy was for a 4-hour shift unless the employee was unavailable for the 4 hours and was willing to work for less time.23 When asked about the right-to-work law, he answered that employees did not have to join a umon but that a union had the right and obligation to represent the entire bargaining unit, both members and nonmembers. He was asked whether it was proper for the Company to extend the lunch hours so as to avoid paying overtime and he answered that that was proper only if the person involved consented 24 When asked about the Company's holiday pay policy, he said that the compensatory time would be given if a holiday fell on a nonscheduled workday for an employee but that holiday pay would be given if it fell on a normally scheduled day.25 He was asked whether he thought the Union would give more job security and he replied that the only job security came in the long run from a successful store and that, if an employee did not do his job, he couldn't expect to be retained for long whether or not there was a umon. He added that at a storewide level unless the employees worked together and produced a reasonable return for the company that store would be closed whether or not there was a union. He also said that in recent years the trend was to close smaller stores which were not profitable and this had occurred in both union and nonunion stores.26 Some of the employees complained about Amen being hard on them and he answered that Amen had a very difficult job trying to keep the store within its budget, that Amen had to crack down on expenses, that whether or not the Union won the election Amen would still have to do his job, and that the results of the election wouldn't change Amen's personality. One employee, Waldeen, asked whether it was company policy to require a woman to work 8 years without receiving a wage increase. He told her he didn't think it was likely and he would talk to her after the meeting. He did speak to her after the meeting and was told that the employee in question was Bonnie Weil. He told Waldeen that frequent- ly an employee's wage level depended on how well she did her job and that he didn't think it was proper for the two of them to discuss the matter since it should be between the employee and management. Waldeen asked whether he meant that she shouldn't talk about it, and he answered that that was right, that they shouldn't talk about anybody else's wage rate.27 Afterward he looked up Weil's personnel jacket which indicated that a number of raises had been given. Before these meetings with Bennett, employees Galka and Penny had sometimes been scheduled for less than 4- hour shifts. Galka was not given any shifts of less than 4 hours after the meeting, and Penny's schedule was changed a week or so later so that all her shifts were at least 4 hours. She did not recall whether the change was before or after the election. Department Manager Gano had on occasions before the meeting been given 1 3/4-hour lunchbreaks so as to avoid overtime pay and this was not repeated for her after the meeting. Department Manager Garner credibly testified that no changes with regard to the 4-hour call-in pay or the extra length lunch hour were made until after the election. Though Garner might not have been in a position to have full knowledge in this matter, there is no evidence to refute her. In response to questions Bennett told employees what company policy was with regard to the 4-hour, call-in pay and extended lunchtimes to avoid overtime. Practice had not conformed to this policy and after the meeting the practice was changed. However, the changes were not made until after the election. In Montgomery Ward & Co., Inc., 187 NLRB No. 126, the Board found that a supervisor's speech to employees that was in many respects similar to the one in the instant case violated Section 8(a)(1) of the Act. There a preelection announcement was made to employees concerning the company's policy on call-in pay and payments were then made to employees pursuant to that policy. The Board found that this constituted an unlawful attempt to influence the employ- ees' choice in the pending election rather than a lawful attempt to correct an inequity. That case is distinguishable from the instant one on several grounds, however. In that case the supervisor told employees at subsequent meetings about the call-in benefits which had been accorded to employees and prophesized that the employees would get "absolutely nothing". from the union if they won the election. In the instant case the changes were made only after the election and Respondent did not use the entire matter as a tool to influence the election nor did it compare what it was giving the employees to the "absolutely nothing" they would receive from the Union. I find that General Counsel has not established by a preponderance of the evidence that Respondent through 23 Some employees testified that Bennett said he would check into the 4- hour call-in situation and others that they would be paid for 4 hours. I credit Bennett's version which was that he simply told them what company policy was 24 Several employees testified that there were questions relating to overtime and complaint was made that certain supervisors and employees were required to take 1 3/4 lunch hours in order to avoid the payment to them of overtime Garner testified that Bennett said he would look into it I credit Bennett's contention that he told the employees what company policy was with regard to that problem 2s Garner testified that an employee complained about getting time off rather than overtime pay for working holidays and Bennett answered that from then on they would get time and a half for holidays they had worked I credit Bennett's assertion that he simply told them what company policy was 26 Jones testified that Bennett told them that there was nothing in benefits that the Union could give them that the Company hadn't already provided Penny testified that he said that the Union wouldn't get advantages for them, that there could be a stoke or walkout, and that in some areas where a store went union the store had closed . I believe that Bennett's version of these matters, as set forth above , is a more complete and accurate account of what happened. 27 Waldeen testified that she complained an employee had not received a raise in 8 years and Bennett said that he doubted it and asked to talk to her after the meeting. She further averred that after the meeting she told him that the employee was Bonnie Weil and he said that he didn't want her to mention it and he wouldn't either I credit Bennett's fuller version of the incident as is set forth above. 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Schulte or Bennett violated the Act by statements made at the meetings on May 7 and 8.28 I further find that the General Counsel has not established that the changes of practice with regard to call- in pay and extended lunches to avoid overtime were motivated by a desire to or did undermine the Union or interfere with the rights of employees to engage in concerted activities. 3. The wage increases-facts and conclusions The complaint alleges that during January, February, March, and April, 1970 Respondent granted wage increas- es to numerous employees to discourage union activity. It is undisputed that a large number of wage increases were given to employees and department managers between November 1969 and April 1970. However, it is equally clear that periodic wage increases have been given to many of the employees and department managers over the years. The General Counsel argues that many of the 1970 increases were in amounts substantially more than prior increases and that fact indicates that the purpose behind the raises was to thwart unionization.29 However, even assuming that the December 1969 through April 1970 wage increases were more extensive than in previous years, I do not believe the General Counsel has proven by a preponderance of the evidence that the increases were motivated by a desire to undermine the Union. Though the complaint alleges that the unlawful wage increases began in December 1969, the company records show that 17 employees and 4 department managers were given increas- es, some of them up to 25 cents an hour (which was extremely high by Respondent's standards) in November 1969. That was before the union drive attained any momentum and at a time when there was no showing that the Company had any knowledge of union activity. In December 1969, after the campaign was well under way, only three employees and two department managers received increases. In January, 24 employees and 1 department manager received an increase; in February, 10 employees and 1 department manager; in March, I employee, and in April, 16 employees and 25 department managers. Respondent contends that all the raises had as a background the fact that the business of the store had been improving and the profit picture warranted substantial wage increases. The increases were of two kinds. The first was a general upgrading pursuant to a wage administration plan and the other was keyed to periodic merit increases. The Cheyenne store was one of the stores subject to a general wage administration plan put into effect in the fall of 1968. The plan was not implemented at the Cheyenne store because Schulte had received instructions to wait until a field representative came to the store from the regional office. Under the plan, job grades had to be 28 The complaint does not allege that Respondent violated the Act by soliciting grievances prior to the election for the purpose of undermining the Union However, the Charging Party urges that I find a violation on such a theory, citing Texaco, Inc, 436 F.2d 520 (C A. 7) Schulte told the employees his thoughts about the Union and Bennett then gave them the details of the pending election Though Bennett did open the meeting for questions and some of the questions related to employment problems, I determined for all employees except department managers and commission salesmen (who were not subject to the plan) and then a wage scale had to be selected for the Cheyenne locality. Respondent's headquarters approved the plan for the Cheyenne store in a letter to Schulte dated October 3, 1969. That letter directed Schulte to start implementing the plan. Under the plan employees were to be brought to the minimum level for their classifications by February 1970. Schulte met the deadline and by January 29, 1970, all the raises required under the plan had been put into effect. These were not merit increases but were raises pursuant to a plan which had been in its formative stages well before any union activity at the store. At least since 1958 (and at the Cheyenne store since its opening), it had been company policy to appraise nonsell- ing employees on their anniversary date of employment and all selling employees and selling department managers by April 15 of each year. According to the credible testimony of Shirley Schwarding, a personnel clerk for Respondent, prior to December 1969, evaluations were made on a rather irregular basis but on that date she was told by Amen to get out all the evaluations that were due. These evaluations were the foundations on which wage increases were given. Prior to that time, in early May 1969, Schulte had received a letter from Respondent's Kansas City headquarters stating: Performance appraisals for department managers were scheduled to be completed in line with company policy by April 15. On the return sheet below, indicate that you have complied with company procedure and assure us and yourself that all appraisals have been handled and covered with the respective employees. With that reminder in back of them, Schulte made certain that all appraisals, and the resulting wage increases, were given to the selling department managers by April 15, 1970. Thus, it appears that the machinery which led to the merit increases as well as to the increases under the wage administration plan were in operation well before any union activity began at the Cheyenne store. I find that the General Counsel has not established that there is a causal connection between the union activity and the wage increases. D. The Refusal To Bargain 1. The facts All selling and nonselling employees employed by the Respondent at its retail store at 1510 Pershing Boulevard, Cheyenne, Wyoming, excluding professional employees, confidential employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act.3o By a letter dated March 5, 1970, which was hand- don't think it could fairly be said that he was soliciting grievances. 29 The General Counsel's brief makes no effort to analyze the voluminous exhibits which he contends support his claim and the Charging Party's brief is content to compare the 1969 and 1970 raises of 19 department managers which show that some of the managers received more in 1970 than 1969. 30 The parties agreed in the representation proceeding that this was an MONTGOMERY WARD & CO. 65 delivered to Schulte on that day, the Union advised Respondent that it represented a majority of the selling and nonselling employees at the Cheyenne store and requested recognition and bargaining. Respondent did not grant the request then or at any time thereafter. In a letter to the Union dated March 18, 1970, Respondent ques- tioned the reliability of authorization cards and invited the Union to petition the National Labor Relations Board for an election. On March 5, 1970, Respondent employed no more than 128 employees in the bargaining unit described above. Respondent Exhibits 13 and 14 were admitted in evidence by stipulation. They showed 128 persons employed on March 5, 1970. It was further stipulated that all of them continued their employment through March 18, 1970. Four new employees were hired between March 5 and 18 for a total of 132. Of the 128 persons employed, 29 were department heads. The two exhibits listed 27 department heads, but a stipulation listed 2 more, Billie Garner and Harolde Lipke. The employee status of all department heads was questioned. Seventy-two union authorization cards were received in evidence. A comparison of these cards with the stipulated lists of persons employed in the appropriate unit shows that 53 were signed by nondepart- ment manager employees prior to March 5, 1970; 12 were signed by department managers prior to that date; 6 were signed by nondepartment managers between March 6 and 17, 1970; and 1 (Ralph Luna, G.C. 9X) did not correspond to any name on the stipulated list.31 By March 5, 1970, 72 persons had signed authorization cards out of the 128 persons employed. By March 18, when Respondent formally rejected the demand for recognition, the Union had 78 cards out of the 133 persons employed (128 plus 4 employees listed on the stipulation as hired after March 15 plus Collins). However, these figures include department managers whose supervisory status is in issue. An examination of the status of the department heads and the accuracy of the listing of employees must be undertaken. The employee list contains the names of Shipping and Receiving Warehouse Manager Clay Moms, Auto Service Manager Ronald McGuinnis, and Repair Service Manager Grant Morrison. Though the list of employees in evidence does not state that these three individuals were department managers, Schulte credibly testified to their titles. Mom- son, who earns $165 a week, has six employees under him; McGuinnis at $150 a week has eight; and Morris at $110 per week has seven. They are all classified as exempt employees who are exempt from the provisions of the wage and hour law. Schulte acknowledged that they have to supervise employees for a certain number of hours per week and make over $100 a week to come into this classification. He also testified that Morrison and McGuin- nis, as well as DeJohn (Morris' predecessor as shipping and receiving warehouse manager) all had and exercised the appropriate unit for bargaining and the matter was not contested at the trial. 31 The index on p. 238 of the transcript shows that the authorization card of Thomas Maxwell, G C Exh 9(BBB) was not received in evidence However, p 239 of the text of the transcript correctly shows that the parties stipulated that G C Exh. 9 (BBB) was signed on the date that appeared on the card (March 12, 1970) and that Maxwell was an employee both at the right to hire employees. I find that they are supervisors within the meaning of the Act and that they should not be counted in the total employee complement. I have found that Evangeline Adams was an employee within the meaning of the Act. I also find that Billie Garner, who had no employees to supervise, who was told by Bennett that she was not bound by the rules regarding union solicitation applicable to department managers, and who was not even listed on Respondent Exhibits 13 and 14 as a department manager, was also an employee within the meaning of the Act. Isabelle Christiansen is manager of department 16 and Dora Bollin manages department 18. Much of their work is together and they both perform basically the same functions and duties as Adams. Respondent's records show as follows: During October 1969, the only person who worked in departments 16 and 18 other than the two department managers was one employee who put in a total of 47 hours between the two departments. Thus, each of the two department managers was allegedly a supervisor for some 6 hours per week during that month (it will be remembered that Schulte credibly testified that department managers have no authority as supervisors outside of their own departments). Six hours per week roughly coincides with the amount of time that normally has to be filled for lunch and break times. In November 1969, the month before the holiday season, three part-time employees worked in departments 16 and 18 for a total of 126 hours. Even this, however, amounted to only some 32 hours per week between the departments or 16 hours of employee work in each department each week. In December the three part-timers worked a total of 186 hours for a total of some 23 hours of employee working time in each department per week. In January the two departments were back to one part-time employee working a total of 91 hours; in February, one part-time employee working 82 hours (with one other part-time employee working 1 hour during the entire month); in March one employee 86 hours and another 6; and in April one employee 103 and another 39 hours. Christiansen credibly testified that at the time of the trial one part-time employee worked some 4 hours a week between the two departments. I find that any supervisory duties that Christiansen and Bollin may have had were exercised so sporadically and so incidentally to their basic job as sales girls that they cannot be considered supervisors within the meaning of the Act. I therefore find that they were employees. With regard to the supervisory status of some of the remaining supervisors, there was a good deal of testimony; with regard to the status of others there was no testimony. However, even without resolving the supervisory status of any of the other department managers, it appears that the Union did represent a majority of the employees prior to Respondent's March 18 written rejection of the Union's demand for recognition. At least until that date the time he signed it and on March 5, 1970. My receipt of the stipulation in evidence included receipt of the card The name Clifford Collins does not appear on the employee list, but his credible testimony shows he was employed sometime before March 16,1970, when he signed an authorization card Therefore , by March 18, 1970, Re- spondent employed 133 persons 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union's demand for recognition was outstanding and continuing. At that time there were 133 persons employed. Three exempt employees must be deducted for a new total of 130. Of the 130 there were 29 department managers, of whom I have found that 4 were employees, leaving 25 potential supervisors. Temporarily deducting those 25 from the 130, 105 employees were in the unit. Adding the 53 cards signed by employees prior to March 5, the 6 cards signed by employees between then and March 18, and the 4 cards signed by department managers who have been found to be employees, the total card count was 63. Of the 25 department managers whose status as supervisors was not determined, 8 signed cards and 17 didn't. If we view the General Counsel's case in the worst possible light, we must add the 17 department managers who didn't sign cards to the employee complement to maximize the number in the unit and not include the 8 who did sign cards so as to minimize the number of cards that can be counted in the unit. Adding the 17 department managers who didn't sign cards to the 105 employees in the unit, totals 122 and the Union had 63 authorization cards, a clear majority.32 2. Analysis and conclusions as to the 8(a)(5) allegation I have found that the Union made a demand for bargaining in an appropriate unit; that the Union possessed authorization cards from a majority of the employees in that unit at a time while the demand was still outstanding; that Respondent rejected the demand; and that Respondent discharged Department Manager Adams, an employee, because of her activities on behalf of the Union, warned employees who were department managers that they could not engage in union activity, and discriminatorily enforced a no-solicitation rule so as to interfere with employee rights. In N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, the United States Supreme Court indicated that a bargaining order would be appropriate in two situations. The first is where "the employer's threats of reprisal were so coercive that, even in the absence of a Section 8(a)(5) violation, a bargaining order would have been necessary to repair the unlawful effect of the [unfair labor practices]." I do not believe that the unfair labor practices in this case are so extreme as to warrant application of that theory. The second situation where a bargaining order is appropriate is "in less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election process." The Court also held ". . . an employer can insist on a secret ballot election, unless, in the words of the Board, he engages 'in contemporaneous unfair labor practices likely to destroy the union's majority and seriously impede the election.' " In implementing the policies set forth in Gissel, the Board held in Garland 32 There are 17 employees who were on military leave due to military service in the Armed Forces . These have not been counted in determining the overall employee complement for computing the Union 's majority status. Aero Corporation, 149 NLRB 1283 , 1291, enfd. 363 F.2d 702 (C A.D C.). Respondent argues in its brief that many of the Union 's authorization Knitting Mills, 178 NLRB No. 62, ". . . the Board may find an 8(a)(5) violation and issue a bargaining order where the possibility of erasing the effects of [the] past practices and ensuring a fair election (or a fair rerun) by the use of traditional remedies . . . is slight ...[therefore] employees sentiment once expressed through cards would, on balance, be better protected by a bargaining order. . . ." in Ship Shape Maintenance Co., 189 NLRB No. 58, the Board expressed the test to be applied in terms of whether the lingering effects of the unfair labor practices rendered uncertain the possibility that traditional remedies could insure a fair election, and whether the Union's majority card designations obtained before the unfair labor prac- tices provided a more reliable test of the employees' desires and better protected employee rights than would a rerun election 33 Applying the applicable criteria to the instant case, I am unable to find that Respondent unlawfully refused to bargain with the Union, that the Respondent's unfair labor practices were so significant and far-reaching as to render uncertain the possibility that traditional remedies could insure a fair election, or that the cards would provide a more reliable test of employee desires and better protect employee rights than would a rerun election. Respondent's violations have been far from blatant and to a large extent they have been self-limiting in their impact on the employees. I have found that the discharge of Adams and the statements to employee department managers that they could not participate in union activity violated the Act, but it was well known to everyone at the store that department managers were in some ways distinguishable from the ordinary rank-and-file employees. The supervisory issue regarding department managers was very real and even though I have found against Respondent on that issue with regard to Adams and some of the other employees at the department managers' meeting, I do not believe, and there is no reason to conclude that the employees believed, that Respondent raised it simply as a smoke screen to disguise an attack on the Union. Though, as I have found below, the Employer's unfair labor practices are sufficient to set aside the election, I do not believe that the impact on employees was sufficient to render uncertain the possibility of a fair rerun election. The only other finding of unfair labor practice relates to Respondent's use of its no- solicitation rule. Here again, the impact on employees was very limited. In a retail store an employer may lawfully forbid solicitation on both company time and in selling areas. Respondent's rule was limited to a proscription against soliciting only on company time. The disparate enforcement of the rule encouraged solicitation for charities and "sunshine fund" gifts without permanently damaging the Union's prospects. I do not believe that this violation, after being remedied by traditional means, would have any impact on a rerun election. In Olin Conductors, Olin Mathieson Chemical Corpora- tion, 185 NLRB No. 56, the Board held that in spite of cards were tainted because Evangeline Adams was a department manager who was active in soliciting them However, I have found that Adams was an employee and not a supervisor 33 See also Colonial Knitting Corp, 187 NLRB No. 134; United Packing Company of Iowa, Inc, 187 NLRB No 132. MONTGOMERY WARD & CO. certain actions of an employer which interfered with Section 7 rights, ". . . the 8(a)(1) violations found by the Trial Examiner are neither so extensive in nature nor so pervasive in character as to preclude the holding of a fair rerun election." In a similar vein in Schrementi Brothers, Inc., 179 NLRB No. 147, the Board held that certain 8(a)(1) conduct by an employer "was not sufficiently flagrant to prevent the conduct of a fair rerun election." I believe the same applies to the instant case. For the above reasons I shall recommend that that part of the complaint which alleges Respondent violated Section 8(a)(5) of the Act be dismissed. IV. THE OBJECTIONS TO THE ELECTION The objections to the election are based in large measure on the same matters set forth in the complaint. These objections specifically allege the discharge of Adams and the statements to employee department managers to the effect that they could not engage in union activity as grounds for setting aside the election . The objections do not specifically mention the enforcement of the no- solicitation rule, but that matter was fully litigated in the complaint case and may properly be considered in determining whether the election should be set aside. Dawson Metal Products Inc., 183 NLRB No. 25. I have found that Respondent violated Section 8(a)(1) and (3) of the Act by discharging Adams because of her union activity, by warning employees on December 30 and 31 that they could not engage in union activity and by discriminatorily enforcing a no-solicitation rule. As the discharge occurred between the date the petition was filed and the election , it must be considered in determining whether the election should be set aside. The warning and the enforcement of the no-solicitation rule may also be considered as both were in effect during that period. The Ideal Electric and Manufacturing Company, 134 NLRB 1275; Good Year Tire and Rubber Company, 138 NLRB 453. As the Board said in Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1785: Conduct violative of Section 8(a)(1) is a fortiori, conduct which interferes with the exercise of a free and untrammeled choice in an election. This is so because the test of conduct which may interfere with the "laboratory conditions" for an election is considerably more restrictive than the test of conduct which amounts to interference, restraint, or coercion which violates Section 8(a)(1). I find that Respondent by engaging in the conduct described above interfered with the election and I shall recommend that the election be set aside and that a new election be directed. As to all the objections other than those relating to the matters set forth above, there is a failure of proof and I recommend their disnussal. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 67 The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade , traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discharged Evangeline Adams in violation of Section 8(a)(3) and (1) of the Act, I shall recommend that Respondent be ordered to offer said employee reinstatement and make her whole for any loss of pay resulting from her discharge by payment to her of a sum of money equal to the amount she normally would have earned as wages from the date of her discharge to the date on which reinstatement is offered, less net earnings during that period. Such backpay shall be computed on a quarterly basis in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, and shall include interest at 6 percent as provided in Isis Plumbing & Heating Co., 138 NLRB 716. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization 'within the meaning of Section 2(5) of the Act. 3. By discharging Evangeline Adams because of her activity on behalf of the Union, thereby discouraging membership in the Union, Respondent has violated Section 8(a)(3) of the Act. 4. By the foregoing conduct, by warning employees that they could not engage in activities on behalf of the Union and by discriminatorily applying a no-solicitation rule against union solicitation, Respondent interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed to them by Section 7 of the Act in violation of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. By engaging in the activities set forth above, Respondent interfered with the freedom of choice of its employees in their selection of a bargaining representative in the election of May 13, 1970. 7. Except as is set forth above, the General Counsel has not established by a preponderance of the evidence that Respondent has violated the Act. Upon the foregoing findings of fact and conclusions of 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD law, upon the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:34 ORDER Respondent, Montgomery Ward & Co., Incorporated, Cheyenne, Wyoming, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employee for joining or supporting Retail Clerks Interna- tional Association, Local No. 187, AFL-CIO, or any other union. (b) Warning any employee against joining or engaging in activities in support of that or any other union. (c) Discnminatonly applying a no-solicitation rule against union solicitation. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer to reinstate Evangeline Adams to her former job or, if her job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for her loss of earnings in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify Evangeline Adams, if presently serving in the Armed Forces of the United States, of her right to full reinstatement, upon application, after discharge in accord- ance with the Selective Service Act and Universal Military Training and Service Act. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due. (d) Post at its retail store located at 1510 Pershing Boulevard, Cheyenne, Wyoming, copies of the attached notice marked "Appendix." 35 Copies of the notice, on forms provided by the Regional Director for Region 27, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately 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 Respondent to insure that said notice is not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 27, in writing, within 20 days of the receipt of this Decision, what steps Respondent has taken to comply herewith.36 IT Is ALSO ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. IT IS FURTHER RECOMMENDED that the election held on May 13, 1970, in Case 27-RC-3815 be set aside, and that said case be remanded to the Regional Director for Region 27 to conduct a new election at such time as he deems the circumstances permit the free choice of a bargaining representative. 34 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 35 In the event that the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board " shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 36 In the event 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 27, in writing , within 20 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had a chance to give evidence, a Trial Examiner of the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice. The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representa- tive of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all these things except to the extent that membership in a union may be required pursuant to a lawful union-security clause. WE WILL NOT do anything that restrains or coerces employees with respect to these rights . More specifical- ly, WE WILL NOT discharge or otherwise discriminate against employees for joining or supporting Retail Clerks International Association, Local No. 187, AFL-CIO, or any other union. WE WILL NOT warn employees against joining or engaging in activities on behalf of that or any other union. WE WILL NOT discriminatorily apply a no-solicitation rule against union solicitation. WE WILL offer to reinstate Evangeline Adams to her former job or, if that job no longer exists, to a substantially equivalent position , without any change in seniority or privileges she enjoyed before we discharged her, and we will pay her any money she lost as a result of the discrimination against her with interest at 6 percent. WE WILL notify Evangeline Adams, if she is presently serving in the Armed Forces of the United States, of her right to full reinstatement , upon applica- tion after discharge, in accordance with the Selective Service Act and Universal Military Training and Service Act. MONTGOMERY WARD & CO. 69 MONTGOMERY WARD & CO., INCORPORATED (Employer) Dated By (Representative) (Title) 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 compliance with its provisions may be directed to the Board's Office, New Custom House, Room 260, 721 19th Street, Denver, Colorado 80202, Telephone 297-3551. TRIAL EXAMINER'S SUPPLEMENTAL DECISION STATEMENT OF THE CASE RICHARD D. TAPLITZ, Trial Examiner: After the initial hearing in this case, my decision issued on June 11, 1971. Respondent was found to have violated the Act by discharging employee, Evangeline Adams, because of her activities on behalf of the Union (the Charging Party), by warning employees that they could not engage in activities on behalf of the Union and by discriminatorily applying a no-solicitation rule against union solicitation. It was also found that Respondent did not violate the Act as alleged in the complaint through various coercive statements alleged- ly made by supervisors, by reducing the hours of employment of Janis Penny, by changing the working conditions of employees, or by refusing to bargain with the Union. It was also recommended that an election previous- ly held be set aside and that a new election be directed. On July 21, 1971, the National Labor Relations Board issued an order granting a motion of the General Counsel to remand the case to the Trial Examiner for the purpose of taking additional testimony . In his motion, the General Counsel acknowledged that he had inadvertently failed to supply certain statements of witnesses to Respondent for cross-examination at the initial hearing as required by Section 102. 118 of the Board's rules. Pursuant to the Board's order that the case be remanded for the purpose of taking additional testimony and for the issuance of a supplemental decision, a supplemental hearing was held in Cheyenne, Wyoming, from September 14 through 17, 1971. During the course of the remanded hearing, I granted a motion to quash a subpena which directed employee Evangeline Adams to produce certain statements that she had given to the Department of Labor in connection with a prior non-Board proceeding. Respon- dent requested permission from the Board to appeal that ruling. By order dated October 14, 1971, the Board granted Respondent's request for leave to appeal, ordered that the record be reopened to permit me to receive the statements from the Department of Labor and examine them in camera and for other proceedings that might then be appropriate, including the reopening of the hearing if necessary. After receiving the statements from the Depart- ment of Labor and examining them , I found that they related to the subject matter to which Adams had testified in this proceeding and I forwarded copies to all parties. In addition, all parties were notified that I would consider a motion for any action deemed appropriate , including the reopening of the hearing for the taking of additional testimony. By order dated November 15, 1971, I granted Respondent's unopposed motion to receive the statements in question in evidence. On the same date, I ordered that the hearing be closed. Upon the entire record and after due consideration of the briefs filed by General Counsel and by Respondent, I make the following: SUPPLEMENTAL FINDINGS OF FACT A preliminary matter raised at the remanded hearing involved the question whether the testimony of Donna Canada Waldeen given at the initial hearing should be stricken because she failed to appear at the remanded hearing. In addition, the testimony and documentary evidence adduced at the remanded hearing related to three general areas : (1) the supervisory status of Evangeline Adams; (2) knowledge by Respondent of the union activities of Janis Penny; and (3) the circumstances under which the Union secured its card majority. A. The Testimony of Donna Canada Waldeen (Also Called Donna Canada) At the initial hearing, Donna Canada Waldeen testified concerning certain matters which included her attendance at meetings held by Respondent and her relationship to her department manager. As found in the initial decision, Waldeen testified that she was told by a supervisor not to talk about another employee's failure to receive a raise for 8 years. I credited the supervisor's fuller explanation of the incident and found that the statement in question did not violate the Act. Other than that, I did not rely on Waldeen's testimony for any of the findings set forth in my decision. Waldeen's statements which should have been given by the General Counsel to Respondent at the time that she was cross-examined at the initial hearing consisted of a questionnaire she gave to the Union setting forth back- ground material for her employment and answers to questions relating to her supervisors. In addition, there was another form she signed indicating that she executed a union authorization card (a photostat of which was on the form) on or about December 8, 1969, in the presence of Vangie Adams. Waldeen testified concerning matters relating to the supervisory authority of department managers and the same subject matter was covered on the statement that should have been but was not given to Respondent for cross-examination . If Respondent had the documents which it was entitled to, they might have been useful in questioning Waldeen concerning the supervisory authority of department managers and in testing her credibility on other matters . The General Counsel mailed a subpena to Waldeeen by registered mail but she did not appear at the remanded hearing. It does not appear that any subpena enforcement procedures were instituted by 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the General Counsel. Respondent was denied its right to cross-examine her on her statements. At the remanded hearing, Respondent moved to strike all of Waldeen's testimony. I reserved ruling on the motion. I believe that Respondents's motion has meet and it is hereby granted. The testimony of Waldeen is stricken. However, as I have not relied on any of Waldeen's testimony for a finding that Respondent violated the Act, there is no need to change either the findings or conclusions set forth in the decision.' B. The Supervisory Status of Evangeline Adams 1. Statements at the department managers' meetings with regard to the right of department managers to hire or fire In the initial decision, I found that Store Manager Schulte never told the department managers that they had the right to hire or fire. At the remanded hearing, Respondent introduced substantial new evidence on that issue. Adams acknowledged that Schulte told the depart- ment managers at the weekly meetings that it was their responsibility to get sales up in their departments. She denied, however, that they were told what to do if the employees did not perform satisfactorily. Department Manager Garner testified that at these meetings Schulte told them that department managers were responsible to see that the people working in their departments performed their jobs properly. Department Manager Smith recalled being told that the department managers were to run their departments like a small store and that they had responsi- bility with regard to firing. Department Managers Ringles- by and Dostell also averred that at the department managers' meetings they were told that they were responsi- ble for hiring and firing their own people. Department Manager Stevens averred that they were told that they could put an employee on probation and that if they caught one stealing they could take care of it immediately. At the initial hearing, Schulte testified that he talked to department managers in November 1969 and told them that they were responsible for hiring, firing, training, making appraisals, and recommending salary increases. In light of the corroboration of that testimony by department managers at the remanded hearing, I am persuaded that Schulte was testifying truthfully in that regard and I now credit that testimony. Inconsistent findings in the initial decision are corrected accordingly. However, I do not believe that this change in factual findings requires a change in the conclusion that Adams was an employee. As was said in the initial decision, "Schulte testified that all the department managers had broad supervisory powers, but such powers in a vacuum are meaningless. As the Court of Appeals for the Fourth Circuit said in N.L.R.B. v. Southern Bleachery and Print Works, Inc., 257 F.2d 235 .. the employer cannot make a supervisor out of a rank and file employee simply by giving him the title and theoretical power to perform one or more of the enumerat- ed supervisory functions...."' The duties of the depart- ment managers varied drastically depending on the size of and work force in the department. During the period in question, Department Manager Garner had no employees to supervise, yet she was given the same instructions at the department managers' meetings as all the other department managers. Adams and the other department managers, where I found to be nonsupervisors, had extremely limited contact with employees in their departments. The nature of that contact and the authority that Adams and the others had with regard thereto must be viewed in determining whether they were supervisors within the meaning of the Act. Respondent's all encompassing statements to the group of supervisors as a whole was meaningless with respect to some. 2. Adams' purported admission that she could recommend hiring and firing In her statement to the Wage and Hour Division, Adams said, "None of the dept. managers could hire or fire, but we could recommend such action." A similar statement by Adams appears in several other documents admitted in evidence. In her testimony, however, she averred that anyone could make such recommendations and that she could suggest such action but that didn't mean that the suggestion would be accepted. I do not believe that Adams' use of the word "recommend" in the statements warrants any inference that she could "effectively recommend" within the meaning of the statute. To her the word "recommend" was synonomous with the word "suggest" and she admitted nothing more than the fact that anyone could make suggestions. 3. Adams' part in the hiring of Sharon Tool In the initial decision, I found that Adams was instrumental in the transfer of one employee, Terry Benton, and in the hire of four others, John Adams, Kathy Carpenter, Finch, and Virginia Leamaster. At the remand- ed hearing, a fifth name was added to the list, Sharon Tool. Sharon Tool applied for work with Respondent in the fall of 1969. While she was outside Operating Manager Amen's office filling out an application, Adams told Amen that she knew Tool and would like to have her employed in her department. Later, Amen looked at Tool's application and questioned whether she had enough experience to be hired. He spoke to Adams who told him that she knew Tool from coming in the store and that she had become acquainted with her. Amen then hired Tool.2 Respondent's employees' service record shows that Tool was employed on August 7, 1969, and was terminated on October 5, 1969. During that period, she worked in department 33 (Adams) as well as departments 35, 39, and 42. Respondent's personal sales and productivity summaries establish the number of hours that Tool worked during her 3-month employment. They show that she did not work at all in Adams' department during October and that she worked 22 hours in Adams' department in September 1969. The records for August do 1 Waldeen's authorization card was counted toward the Union's counted majority status However, that card was admitted by stipulation independ - 2 These findings are based on the credited testimony of Amen, Adams ent of her testimony and, therefore, is not affected by the sinking of her only vaguely remembered Tool as Christmas help testimony. In any event, the Union had a majority even if her card was not MONTGOMERY WARD & CO. 71 not separate the hours into departments worked but show that Tool worked 113 hours between departments 33, 35, 39, and 42. It thus cannot be established from these records how much contact Tool had with Adams during August 3 Tool's relationship to department 33 was a limited one. Adams' part in her hire was similar to the part she played in the hire of other employees. Adams' relationship to her as a part-time employee in department 33 was also similar to the relationship with other part-time employees. The implications of Adams' role in hiring and her relation to employees in department 33 are set forth in detail in the initial decision and I do not believe that the addition of Tool to the total picture changes the validity of the analysis in that decision or the validity of the conclusion that Adams was an employee within the meaning of the Act. C. Knowledge by Respondent of the Union Activities of Janis Penny4 In the initial decision, I found that the General Counsel had not established by a preponderance of the evidence that Respondent knew of Penny's union activities before her hours were reduced. At the remanded hearing, Penny testified that Respondent knew of her union activities because before December 24 (which was the date that Penny's difficulties with Respondent began) she had asked Supervisor Clay Moms to sign a union card and had told Supervisor Grant Morrison that if he went union he wouldn't have so much trouble with his people quitting. Morrison acknowledged that Penny mentioned the Union to him but he placed the conversation on a date after her hours had been cut. I do not believe that Penny was always completely candid and I credit Morrison. Clay Morris did not testify and, with regard to him, Penny's testimony stands uncontradicted. I find that Morris, who in the initial decision was found to be a supervisor, had knowledge that Penny was active on behalf of the Union before her hours were reduced. The knowledge of a supervisor as to the union activities of an employee can be imputed to a company. Texas Aluminum Co. v. N.L.R.B., 435 F.2d 917 (C.A. 5), enfg. 181 NLRB No. 15. In reviewing the scope of Penny's overt union activity and giving particular weight to the evidence established in the remanded hearing that she had solicited a supervisor to join the Union prior to her difficulties with Respondent, I find that Respondent did have knowledge of Penny's union activity before her hours were reduced. The findings to the effect that Respondent did not have such knowledge set forth in the initial decision are therefore corrected accordingly. However, in the initial decision, I found that even if the General Counsel had established that Respondent knew of Penny's union activities and therefore had proved its prima facie case, Respondent's defense was sufficient to rebut it. The reasons set forth in that decision which led me to that conclusion have not been put in question by anything raised in the remanded hearing. D. The Validity of the Union's Authorization Cards In the initial decision, I found that the Union made a demand for bargaining in an appropriate unit; that the Union possessed authorization cards from a majority of employees in that unit at a time when the demand was still outstanding; that Respondent rejected the demand; and that Respondent violated Section 8(a)(1) and (3) of the Act. However, under all the facts of the case, I found that Respondent did not refuse to bargain in violation of Section 8(a)(5) of the Act. Respondent, in an apparent attempt to further support the finding that it had not violated Section 8(a)(5) of the Act, introduced evidence that some of the authorization cards were obtained through misrepresentation. Employee John Brent testified that John Adams, the son of Evangeline Adams, was present when he signed an authorization card and that John Adams told him that the card would go into the Union and that they needed a certain number of signatures for a vote. John Adams, in his testimony, implicitly denied that he had made such a statement by averring that he believed at that time (the card was dated March 2, 1970) that if the Union signed up a majority of the employees, they would have a union and that he didn't know there had to be an election. It is noted that the Union requested recognition and bargaining on March 5, 1970, and that Respondent replied by letter dated March 18, 1970, in which it invited the Union to petition the Board for an election. Brent also averred that he talked to Adams before he signed the card, but he could not remember what was said. The authorization cards read: RETAIL CLERKS 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 Address Store No. Employed as Dept. (Job Title) Home Address 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) John Adams impressed me as an honest and straightfor- ward witness. I do not credit Brent's testimony that Adams told him the card would be used for an election. Les Stevens was a department manager and his card was not counted toward the Union's majority. He testified that Evangeline Adams gave him an authorization card and told him that everybody was getting them signed for the election. Evangeline Adams, in her testimony, denied that she made mention of the word election and averred that, 9 None of the records indicate whether Tool worked during hours that Adams was in the store. 4 In sec III, B,2,a, par 2, of the initial decision the word "discharged" should have read "reduced in hours " It is hereby corrected. 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when she asked people to sign cards, she inquired if they'd be interested in signing in order to gain representation by the Union for collective bargaining. She also averred that at that time she didn't know anything about the existence of an election or the possibility of one. Certainly the wording on the cards that she distributed would not give an inkling to her or to the people to whom she gave the cards that an election was contemplated. According to the credible testimony of Marian Jones, when Jams Penny gave her a card, Penny said that it was to be used for the purpose of assuring union representation and nothing was said about an election. On the other hand, employee Lucille Galka to some extent corroborated Stevens' testimony by averring that Evangeline Adams told her that the only purpose in signing the card was so that they could vote on the Union. Evangeline Adams averred that she never made such a remark. Galka's testimony was not always consistent. She averred that she didn't recall whether Adams said anything to the effect that if they got enough cards, they wouldn't have to have an election, and she was only under the impression that they had to have enough cards to get a vote. She gave cards to two other employees, Frances Bernhardt and Carol Buchanan, and she averred that she told those employees the same thing that Adams told her. Yet, in her further testimony, she left out the assertion that the only purpose of the card was to get a vote and averred that she told those two girls that they would like them to sign it so that they could have an election. Galka further testified that she attended a union meeting at Adams' home in which Adams said the same thing to the people present about the purpose of the card, and Union Agent Francisco talked about cards and the Union. However, in further examination, she averred that it was Francisco and not Adams who explained that the cards would be used for an election. She also averred that she attended a second meeting at which a Mr. Russell from the Union was present and the employees were told that the whole drive was to get signatures so that they could vote and that they should tell employees that the cards were dust for the purpose of getting an election. Adams was also present at the meeting in which Russell spoke and she averred that Russell told them that by signing the cards the Union would be able to put its foot in the door and represent the employees for collective bargaining, but that no mention of the word election was made. According to Adams, Russell also said that if the Union had enough cards, it could have the right to bargain with the Company. The cards were clear on their face and were an unequivocal authorization for the Union to represent the employees who signed them. There is no testimony that Galka, or any other employee, ever questioned the seeming disparity between what they were told about the cards and what the cards stated on their face. There was much discussion of an election later in the campaign, and I believe that Galka and Stevens were mistaken in their chronology. Basically, I believe Evangeline Adams to be an honest and fairly accurate witness. I credit her testimony that she did not tell anyone that the cards would be used for an election . I also credit her testimony that Russell did not make such an assertion . I do not credit Galka's testimony that either Adams or Francisco talked about the cards being used for an election at the meeting in Adams' house. With regard to Lucille Galka's testimony that she told two employees that they would like them to sign cards so that they could have an election , I have some reservations as to credibility. However, as that modification of her initial testimony is not contradicted, I will credit it. Nonetheless, I do not believe that such a statement would invalidate either of the cards. As the United States Supreme Court said in N.LR.B. v. Gissel Packing Co., 395 U.S. 575: 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 sign unless that language is deliberately and clearly cancelled 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. I do not believe that it can fairly be said that in the circumstances of this case anyone was misled into disregarding the clear language of the card. E. Conclusions Except to the extent that the findings of fact in this supplemental decision supplement or modify the findings made in the initial decision, I hereby adopt and reiterate all of the findings in that initial decision. I find nothing in the remanded hearing to warrant any modification in those sections captioned: IV. The Objections to the Election; V. The Effects of the Unfair Labor Practices Upon Com- merce ; VI. The Remedy; Conclusions of Law, ORDER or Appendix, and I, therefore, fully adopt and reiterate those portions of the initial decision.