Montgomery Ward & Co., Inc.

978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Montgomery Ward & Co., Incorporated and Depart- ment Store Employees Union Local 1100, Retail Clerks International Association, AFL-CIO. Montgomery Ward & Co., Incorporated and Depart- ment Store Employees Union Local 1100, Retail Clerks Union Local 648, Retail Shoe & Textiles Salesmen's Union Local 410, affiliated with Retail Clerks International Association, AFL-CIO; Warehouse Union Local 860, Garage & Service Station Employees Local 665, affiliated with International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America; and International Association of Machinists and Aero- space Workers, Peninsula Auto Mechanics Lodge 1414, AFL-CIO, Joint Petitioners. Cases 20-CA-5988 and 20-RC-9094 April 9, 1973 DECISION. ORDER, AND DIRECTION OF SECOND ELECTION By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On June 7, 1971,1 Administrative Law Judge George H. O'Brien issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions to the Administrative Law Judge's Deci- sion and a supporting brief, the General Counsel filed cross-exceptions, and the Charging Party filed an answering brief, cross-exceptions, and a brief in support of cross-exceptions. Thereafter, the Board, by order dated February 29, 1972, remanded this case for a further hearing on certain credibility resolutions made by the Adminis- trative Law Judge.2 On April 26, 1972,'a hearing was held before Administrative Law Judge Leo F. Lightness and on June 12, 1972, the Administrative Law Judge issued the attached Supplemental Deci- sion. The Respondent filed exceptions to the Supple- mental Decision with a supporting brief, and the General Counsel and the Charging Party filed briefs in support of the Supplemental Decision. 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 attached Decision in light of the exceptions, cross- ' The title of "Trial Examiner" was changed to "Administrative Law Judge- effective August 19. 1972. 2 These concern the conflict in the testimony of employees Gregor and Reine concerning Gregor's asserted solicitation of Reine during working hours. :' On March 16. 1972, Administrative Law Judge George H. O'Brien disqualified himself from further proceedings herein. ' We also affirm Administrative Law Judge Lightner's findings of fact exceptions and briefs, and has decided to affirm the Administrative Law Judge O'Brien's findings. and conclusions, and to adopt his recommended Order for the reasons stated below.4 We agree with the Administrative Law Judge that Respondent violated Section 8(a)(1) of the Act by its supervisor, Gerd W. Zimmerman's interrogation of and threatening of an employee regarding her union activities and creating the impression of employer surveillance of the employees' union activities. We also agree with the Administrative Law Judge that because this conduct as well. as other conduct of the Respondent occurred within the critical election period, the election in Case_ 20-RC-9094 should be set aside and a second election directed. We further agree with the Administrative Law Judge that Respondent violated section 8(a)(3) of the Act when it discharged Martin Pecorvsky on January 21, 1970. While the Administrative Law Judge cited and relied on statistics relating to various pay periods prior to October 1969 in which Pecorvsky failed to make commissions equal to his draw of $100 per week, we would note that the record also shows that during the 12-week period beginning with the week ending October 1, 1969, and ending with the week ending . December 17, 1969, Pecorvsky's weekly earnings exceeded his draw in every week but one. His earnings during this period, on an average, exceeded his weekly draw by $82.27. In addition, Pecorvsky was on vacation for the last 2 weeks of December 1969. Thus, Respondent could only have "reacted" to Pecorvsky's failure to meet his draw during the first 3 weeks of January 1970. Yet, according to Respondent's own procedure, Pecorv- sky was' entitled to at least 1 more week and possibly as many as 3 more weeks in which to work off his excess draw before the excess draw would have been written off by the Respondent, thereby subjecting Pecorvsky to possible discharge or transfer. Nor can we accept the contention that Pecorvsky was let go in January 1970 for any shortcomings in earnings that occurred in 1969, all of which had to have occurred prior to the last quarter of the year 1969 during which his earnings far exceeded his draw. In view of Pecorvsky's union activities and Respondent's knowledge thereof, and absent any reasonable explanation for failing to live up to its own procedural requirements, and in the face of Pecorv- sky'.s relatively successful final 1969 quarter, we that Gregor did not solicit Refine on working time. Respondent again excepts to the credibility resolutions respecting this phase of the case. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponder- ance of the relevant evidence convinces us that the resolutions were incorrect . Standard Drv Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record and find no basis for reversing his findings. MONTGOMERY WARD & CO. 979 agree with the Administrative Law Judge that the reasons advanced by Respondent for the discharge of Pecorvsky were pretextual, and that he was discharged because of his activities on behalf of the Union. As to the discharge of McGaughy, we are of the opinion that he was discharged in violation of Section 8(a)(3) of the Act. In reaching this conclu- sion, we find it unnecessary under the particular facts of this proceeding to resolve any credibility resolu- tions, for regardless of whether we accept Johnson's or McGaughy's version of the incident we are of the opinion that there was no solicitation within the meaning of Respondent's posted rule. The testimony of both., employees clearly shows that the conversa- tion between the two employees began just before closing time and involved a discussion about the boat Johnson was in the process of preparing for the sales floor. During the course of the conversation the price of the boat came up and the question of a sales commission or the lack thereof arose. At this point, accepting Johnson's version of the conversation, McGaughy during the course of the conversation only mentioned that if the Union were voted in there could be a commission earned on such "big ticket" sales. Again, accepting Johnson's version of the conversation, McGaughy also mentioned that the Union sponsored dinners where Johnson could probably learn more about the benefits. In our opinion, this was nothing more than a conversation between two employees who frequently had discussions with each other during the course of their employment. Thus, there was no direct solicita- tion, and there is no showing that .Johnson at any time stopped working. The fact that the conversa- tion, whether by design or happenstance, eventually turned to the benefits of having a union in the store, does not, in our opinion, raise such a conversation to the status of solicitation. We would reach that same conclusion even if we ignored completely Johnson's testimony before the Trial Examiner and relied solely on Johnson's written statement given to Respon- dent's officials the day following the incident, for in that statement, Johnson, in addition to stating that McGaughy mentioned some benefits, said that McGaughy asked him if he was going to join the Union and if he was going to vote for the Union. Again such comments and questions during the course of an otherwise normal conversation do not, in our opinion, elevate „such a conversation to the status of solicitation within the meaning of Respon- dent's rule.5 Our conclusion herein is further sup- ported by Respondent's treatment of Fothroe's Store Manager Brandt testified himself that a conversation between two employees about the Union would be grounds for discharge if it involved direct solicitation. " ( Emphasis supplied.) involvement in the conversation. If it was not a normal conversation between two employees then Fothroe's "butting in" and taking an intransigent stand in discussing the disadvantages of the Union could not be characterized as other than "solicita- tion" against the Union, and yet . Respondent completely ignored Fothroe's participation in the incident. In our opinion, Respondent's treatment of the Fothroe aspect of the incident is the only result compatible with a reasonable interpretation of Respondent's posted rule. This incident was noting more than another of the inevitable conversations that occurs between employees while at work. Accordingly we find that Respondent seized on this minor incident using it as a pretext to discharge McGaughy because of his support of the Union in violation of Section 8(a)(3) of the Act. We have adopted the Administrative Law Judge's finding that Gregor did not violate Respondent's no- solicitation rule. Accordingly, as Gregor was dis- charged for soliciting employee Reine to join the Union, albeit in the mistaken belief that the solicitation occurred on working time, we find that he was discharged because of his union activities in violation of Section 8(a)(3) of the Act. Even if we assume, contrary to our findings of fact, that Gregor and McGaughy engaged in union solicitation in violation of Respondent's rule, we find, in agreement with the Administrative Law Judge, that Respondent violated Section 8(a)(3) of the Act when it discharged them and Jerry Likissas for such solicitation. The record shows that although the rule is otherwise lawful, Respondent's application of the rule in the instant case clearly shows that it was arbitrarily and discriminatorily applied to these three employees in order to impede and discourage union activity on the part of its employees. The record is replete with instances of solicitations on the selling floor sponsored and/or condoned by the Respondent for various purposes including a Christ- mas party, the United Campaign, a savings bond drive, and a company picnic as well as solicitations for automobile insurance and a Dale Carnegie course for various members of the sales staff. Many, if not all, of these solicitations took place within a 6-month period antedating the advent of the-Union's organi- zational campaign amongst Respondent's employees. Despite these many and varied solicitations, it was not until the advent of the Union that the Respon- dent took any steps whatsoever to enforce its rule against solicitations for "unions, or fraternal reli- gious, social, or political organizations." Notwith- standing its posting the rule and warning employees that soliciting for unions was prohibited, Respondent allowed widespread and indiscriminate solicitations 980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD both on the selling floor over the loudspeaker and at the cashier's cage, on behalf of an employee party it was encouraging employees to attend. Respondent cannot now be heard to say that its application of the rule against union solicitations. was necessary to protect the efficient operation of the. store. In these circumstances we, in agreement with the Administra- tive Law Judge, find that Respondent applied its no- solicitation rule for the purpose of impeding or discouraging its employees' right to engage in union activities, that the rule was applied in a discriminato- ry manner, in violation of Section'8(a)(1) of the Act, and that such a discriminatory application to effect the discharge of the three named employees violated Section 8(a)(3) of the. Acts 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 Administrative Law Judge as modified below and hereby orders that the Respon- dent, Montgomery Ward & Co., Incorporated, Serramonte Shopping Center, Daly City, California, its -officers , agents, successors, and assigns, shall take the action set forth in Administrative Law Judge O'Brien's recommended Order. - IT IS FURTHER ORDERED that the election conducted herein on April 17, 1970, be, ' and it hereby is, set aside. [Direction of Second Election and Excelsior foot- note omitted from publication.] 6 See Daylin Inc., Discount Division d/b/a Miller's Discount Dept. Stores, 198 NLRB No . 40. In reaching our conclusion herein , we do not rely on or adopt Administrative Law Judge Lightner's characterizations of certain observations of Respondent's attorney set forth in in. 9 of the Supplemental Decision. TRIAL EXAMINER'S DECISION and REPORT AS TO DISPOSITION OF OBJECTIONS TO CONDUCT AFFECTING THE RESULT OF THE ELECTION STATEMENT OF THE CASE GEORGE H. O'BRIEN, Trial Examiner : This consolidated proceeding was heard at San Francisco,' California, on February 23 through 26 and March 1 , 1971. In this Decision and report , Montgomery Ward & Co., Incorpo- rated, is called Respondent, and Department Store Employees Union Local 1100, Retail Clerks International Association , AFL-CIO, is called the Union. The com- plaint, issued December 10, 1970 , is based on a charge filed { by the Union on March 20, 1970, as amended April 3, April 16, April 27, and November 18, 1970. The complaint alleges in substance that Respondent, by discharging four employees,, by coercive interrogation, threats of more difficult working conditions and loss of benefits, and by creating the impression of surveillance, violated Section 8(a)(1) and (3) of the National Labor Relations Act. By an order of consolidation issued by the Regional Director on December 10, 1970, certain objections by the Union to conduct of Respondent 'affecting the results of an election held April 17, 1970, were placed in issue. Upon the entire record' in this proceeding, including my observation of the witnesses , and after due consideration of the posthearing briefs, I make the following: FINDINGS . OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, an Illinois corporation, owns and operates a retail department store and automobile service center in Serramonte Shopping Center, Daly City, California. Respondent annually causes to be shipped from points located outside the State of California, directly to its Daly City store, goods valued in excess of $50,000, and the annual sales of said store exceed $500,000 in value. II. THE LABOR ORGANIZATIONS INVOLVED The 'Union and the other Joint Petitioners hereinafter named are labor organizations within the meaning of Section 2(5) of the Act. 1III. THE ALLEGED UNFAIR LABOR PRACTICES AND THE CONDUCT ALLEGED TO HAVE AFFECTED THE RESULT OF ELECTION A. The Issues in Case 20-RC-9094 On November 21, 1969, the Union filed a petition for Certification of Representatives. On February 24, 1970, the petition was amended by adding, as joint petitioners with the Union, the names of: Retail Clerks Union Local 648; Retail Shoe and Textile Salesmen's Union, Local 410; Warehouse Union Local 860, I.B. of T.; Garage and Service Station Employees Union, Local 665; and Interna- tional Association of Machinists, Peninsula Automotive Mechanics, Lodge 1414. Pursuant to a Decision and Direction of Election issued by the Regional Director on March 24, 1970, an election by secret ballot was conducted on April 17, 1970, in the following unit: All selling and nonselling employees employed by the Employer at its Serramonte store and auto service facility located in Daly City, California, excluding employees of independent concessionaires, guards, and supervisors as defined in the Act. The tally of ballots served on the parties following the election disclosed that, of approximately 311 eligible voters, 293 cast ballots, of which 105 were for, and 169 The posthearing motion of the General Counsel to correct the stenographic transcript is granted. MONTGOMERY WARD & CO. 981 against, the Joint Petitioners. One ballot was void. Timely objections, designated I through 22, inclusive, were filed by Joint Petitioners. All objections except those numbered 1, 2, 10, and 11 were subsequently withdrawn. In his order dated December 10, 1970, the Regional Director found that these remaining objections raised substantial and material issues of fact which should be resolved by a hearing before a Trial Examiner. The objections in issue are: 1. On or about January 16, 1970 [Respondent] suspended the employment of Frank Gregor, Jerry Likissas and Jim McGaughy because of their member- ship in or activities in behalf of [the Union]. 2. On or about January 21, 1970 [Respondent] terminated the employment of Frank Gregor, Jerry Likissas, Jim McGaughy and Martin W. Pecorvsky because of their membership in or activities on behalf of [the Union]. . . . 10. Since on or about November 21, 1969 and continuously to date [Respondent] has published and discriminatorily enforced an illegal no solicitation rule. 11. Since on or about November 21, 1969, and continuously to date, [Respondent] has coercively interrogated employees concerning their union activity, threatened employees and promised benefits to em- ployees, and has engaged in.surveillance of employees engaging in protected concerted activities. B. The Issues in Case 20-CA-5988 1. Whether Respondent's no-distribution, no-solicita- tion rule was discriminatorily applied to prohibit only prounion solicitation while permitting other types of solicitation. 2.- Whether Frank Gregor and James McGaughy engaged in conduct violative of the Respondent's pub- lished rule. 3. Whether Respondent's invocation of the rule to justify the discharges of Frank Gregor, James McGaughy, and Jerry Likissas was pretextual. 4. Whether Respondent's assertion that Martin Pecorv- sky "was terminated because of his unsatisfactory selling performance" was a pretext to disguise a discharge for protected union activities. 5. Whether remarks made by Department Supervisor Zimmerman to employee Blasingame on January 6 or January 7, 1970, violated Section 8(a)(1) of the Act. 6. Whether Respondent's motive in discharging Gre- gor, Likissas, McGaughy, and Pecorvsky was to discourage membership in and protected concerted activities on behalf of the Union. C. Sequence of Events The Serramonte Mall is a large, modern, completely enclosed, and air-conditioned shopping center, containing 2 large department stores, Respondent's and Macy's, about 30 small shops, and at least 3 restaurants. Respondent's store is a two-story structure. All selling is done on the ground floor. Administrative offices, the cashier's cage, and a large conference room, called the Wendy Ward Room, are on the second floor. Respondent's store opened for business on July 31, 1968. The manager was Robert John Brant. Freymann was the operating manager. Donald L. Carey was personnel manager. Thompson was security manager. Each of the 30 or more departments in the store is under a working supervisor called a department manager. It was stipulated that all Respondent's depart- ment managers, and the staff above them, were supervisors within the statutory definition. Since the store is open in the evenings and 7 'days a week, there is an assistant manager in each department who functions in the absence of the department manager. The assistant managers do not come under the statutory definition of supervisor. The bargaining unit comprises approximately 300 employees, of whom about 50 are paid by "draw against commission." Lloyd A. (Red) Orcutt, an organizer employed by the Union, made personal contact with some of Respondent's employees in the open mall, outside the store in November 1968. On November 28, 1968, a few of Respondent's employees met with Orcutt and his assistant, Frances Spahn, at the Sierra Bowl, outside the shopping center, and the first authorization cards were signed. The first union handbills were distributed at the employee's entrance shortly thereafter. By early spring 1969, Personnel Manag- er Carey had identified Orcutt and Spahn as the union organizers. On September 17, 1969, about 15 of Respondent's employees had dinner with Orcutt and Spahn at the Sierra Bowl. The Union sponsored a second dinner in a private dining room at the New Southern Restaurant, outside the shopping center, on Sunday, October 5, 1969. About 25 of Respondent's employees attended. Next morning, before the store opened, commission saleswoman Shirley Witham and commission salesman Eli Lisha discussed the dinner while working in the shoe department stockroom. Alfred Hung Lee was working in the adjacent hardware department stockroom. Lisha handed to Lee, a hardware salesman, a union authorization card and explained it to him. Lee, that same morning, went upstairs to Carey's office and told Carey that he had been solicited by Lisha and Whitham. Carey told Brant that Lee had complained that he was being solicited for union membership. Brant called Lee to his office. Lee showed Brant the union authorization card, said he did not think it was right that he should be solicited while he was working, and he wished to make a complaint. Lee identified Lisha and Whitham as the solicitors. Brant then called Lisha to his office, and, in the presence of Carey required Lisha to read to himself one paragraph from Respondent's personnel manual. Brant then read aloud to Lisha the same paragraph from the manual, and at the conclusion of the reading told him that if this violation of company policy should happen again Lisha would be terminated. The manual text was: 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 982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 soliciting 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. Meetings or speeches are not to be permitted; solicita- tion which results in disturbing or interfering with the work or function of any of the employees or depart- ment is forbidden; solicitation which is detrimental to maintaining the premises in a clean and attractive condition is forbidden. Only employees of Wards shall be permitted access to any part of the Company's property not open to the general public. Non-employee representatives may visit only those parts of the Company premises open to the general public-public cafeterias, public washrooms and sales floors. Such persons must conduct themselves in a quiet and orderly manner while on such Company premises; they may not distribute literature, make speeches, hold meetings, or disrupt the working time of any employee or the operation of any department. Carey then called Whitham to his office, showed her the manual, read the foregoing rule aloud, and told her that if she were caught handing out union literature on company time she would be "fired." Brant then caused to be typed on Respondent's letter- head paper, the text of the foregoing with the following caption in lieu of that appearing in the manual: TO: ALL EMPLOYEES COMPANY POLICY-RULES OF CONDUCT RE: DISTRIBUTION OF LITERATURE' Brant's typewritten letter was posted on all employee bulletin boards on Thursday, October 9. At a regular meeting of department managers on. Friday, October 10, Brant directed the department. managers to call this "company policy" to the attention of their subordinates and in the words of Sewing Machine Department Manager John L. Mendez, "to keep our mouths shut and our eyes and ears open." Prior to October 9, 1969, there was no posted notice forbidding or restricting any type of solicitation at any time, and the rule in the personnel manual was not communicated to any employee (other than possibly a few department managers) prior to Monday, October 6, 1969. Later in October 1969, a committee was selected to make arrangements for a Christmas party. Personnel Manager Carey was the chairman and the other members were: Lois Cook, George Couchman, John Mendez, and John Rosette. The committee selected the date-December 5-and the location-Elks Club-got out publicity, and sold tickets. Department managers at their regular meet- ings were told "to get their employees to come to the party." Announcements were made over the loudspeaker before the 9 a.m. store opening and during working hours that tickets could be obtained in the personnel office, or from the cashier at her cage, or from members of the committee. At committee meetings, Carey told his fellow members that they could not sell tickets on the sales floor, and that the only place they could sell tickets was, on their coffeebreaks or lunch hours, in the buffeteria or outside the store. Carey's secretary, Lois Cook, gave Gregor 20 tickets to sell. (Gregor was the sports editor of Respondent's newspaper, "Monty's Words"). Cook placed no restrictions on Gregor, and he openly solicited other employees in other departments on the selling floor during working time. Carey and Operating Manager Freymann were aware of the fact that Gregor was selling tickets. The Union's third dinner was held at the New Southern Restaurant on Sunday evening, January 11, 1970. About 35 of Respondent's employees attended. Gregor, Pecorvsky, McGaughy, and Likissas sat at the head table with the Union's secretary-treasurer, Walter Johnson, Orcutt, and Spahn. At closing time on January 11, Brant was stationed at the door bidding the employees "good-night." As Gregor was leaving, Brant, with whommhe was "rather friendly," asked if Gregor was going to the union dinner and Gregor replied in the affirmative. On January 14, 1970, Respondent distributed to "ALL EMPLOYEES" a letter signed by Brant stating: Well the Retail Clerks Union is trying to "climb on the band wagon" again. Local 1100 has copied manage- ment again-this time by preparing and distributing a watered-down version of the attitude survey that the Company conducted among you in the past few months. . . . Let me assure you that no one is concerned with your welfare more than I am. As you know, it was I who requested that the attitude survey be conducted among you and your fellow employees several months ago. . . . You probably have noticed improvements in the last few months. These improvements, in many cases, took place as a result of your constructive comments on the Company's attitude survey. Other improvements are planned for the next few months, and I will be talking to you about them. I suppose next thing [the Union is] going to try to take credit for the improvements that store manage- ment has made based on our attitude survey. Don't be fooled-neither this Union nor any other Union in the United States has the power to make any changes in your wages, hours or working conditions with which the Company does not agree. That ultimate power rests as it should with management. ... The best place to come with your suggestions for improvements is to me. . . . I will personally review all these suggestions and comments and where changes are needed, changes will be made. Remember I have the power to make improvements. The Union does not without the Company's agreement and remember too that it costs. you absolutely nothing to come and discuss problems with me. On Wednesday, January 14, 1970, Albert John Reine, while he was working in the paint department, accepted from Likissas a blank union authorization card. MONTGOMERY WARD & CO. 983 On Thursday, January 15, there was distributed to employees the January issue of "Monty's Words" an- nouncing improvements in the compensation policy for commission salesmen, improvements in the profit-sharing plan, and reductions in group insurance rates. On the evening of January 15, there was a discussion of the Union between the assistant sporting goods manager, Johnson, and hardware salesman, McGaughy. On Friday, January 16, 1970, Gregor, McGaughy, and Likissas were sent home under suspension. On Wednesday, January 21, Pecorvsky was discharged and Gregor, Likissas, and McGaughy were notified by telephone that their suspensions had been converted to terminations. D. Discharge of Gregor and Likissas 1. Reine's testimony Albert John Reine is a college student employed part time in the paint department of the Daly City store since August 1968. He is paid by the hour and does not receive any commission on sales. His hours of work were either from 1 to 5 p.m. or from 1:30 to 5:30 p.m. On Wednesday , January 14, 1970 at about 2 p.m., .. . Mr. Frank Gregor approached me . . . and he said, "I hear you work kind of good , How about an ap?" ... I said, "What do you mean?" "Well" he said, "I'll get you an ap", and he left and I just continued doing my work , and then at approximately two o'clock, a man I didn't know at the time-we just called him "Jerry", or "Jerry the Greek"-his name is Mr. Likissas-approached me and he gave me . . . a union application. . . . I said I would think it over. Mr. Likissas was asking about some outside paint for his mother's house . . . and while he was talking about paint he was explaining some of the benefits in between . .. he mentioned something about a dental plan .. . if the union went through you'd get a dental plan .. . and I think I recall saying to him "But I have good teeth." And then he mentioned something about part- time employees, or any employee would be getting double time for Saturday. And, I don't know. Double and a half or tripple for Sunday. Meanwhile he was deciding on a color for his mother's outside paint. .. . I just said I would think it over, and I explained to him about our paint, and gave him the sales pitch. * * * * * Well I talked it over with my parents that night, and I came to the conclusion that the next day-this would be Thursday. He first approached me on Wednesday. I told my department manager that I'd been-approached, and I honestly. didn't know what to do about it, and I didn't want to get involved, and because I was afraid I was going to lose my own job, I was kind of scared. * * * * * Well I talked it over with my parents, the first day after I was approached, and, they told me some of the things that have happened to them in their experiences of growing up. So did some of my other relatives, and I came up to the conclusion of what I thought was right, and I said I knew to myself that it was against the store rules. And possibly I could be fired, if I continued with this action, and it would probably be better to my advantage to let the company know what was happen- ing, if anything should happen, that I honestly wasn't trying to do something I knew was against the store rules. And so, just for my own protection, I reported it to my department manager, and went from there to our protection department and Mr. Carey and Mr. Brant, the union relations manager. About 45 minutes after Reine started working on Thursday, January 15, Likissas came around again, asked if Reine had the application filled out and Reine replied, "I'm still thinking it over." Likissas then repeated some of the benefits of the Union and told Reine that there was no rush, that he could just mail in the application. On Thursday, January 15, whether before or after the second conversation with Likissas is not clear, Reine told his manager, Donald C. Smith, that he had, been ap- proached. Reine then went upstairs to Brant's office and I believe I told Mr. Brant that I was approached by the Union, and I explained to him what had happened, and he told me, "If you would like to make a statement there would be no problem. Is there anything for you-could you make a statement on your own free will? If you would like to, and if you would see Mr. Thompson"-and I told Mr. Thompson, I believe in Mr. Carey's office, with Mr. Davis -and I made a written statement of the actions that I have just told you. On Friday, January 16, "I went up to Mr. Carey's office, they wanted me to make a positive identification of the man I was talking about, because I believe they have two salesmen who were of Greek nationality in that depart- ment." Reine went back downstairs, followed by Mr. Carey and a man from the protection department. Pointing to Likissas, Reine said: "This is him." Reine did not work on Sunday, January. 11, and was not in the store on that day. 2. Gregor's testimony Frank Gregor was first employed at Respondent's catalogue store on Irving Avenue in San Francisco on May 12, 1965. In June 1968, while working for Respondent at its south San Francisco store, he applied to Carey for assignment to Serramonte. In answer to Carey's inquiries, Gregor stated that he sympathized with some of the people who did desire to join the Union, but that as a commission salesman the Union would not benefit him to any extent "inasmuch as I was retired from the military service after 23 faithful years." From the time the Daly City store opened, Gregor worked as a commission salesman in major appliances (refrigerators, freezers, washers, driers, ranges). Gregor was acquainted with Reine's parents and "was responsible for getting Reine employed." Gregor had known Likissas since 1965 and signed a union authoriza- tion card for Likissas in the latter part of 1969. Shortly 984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after the store opened, appliance salesman Vanderwater began collecting $ 1 a week ' from other "big ticket salesmen" to throw a party. During the Bay Area United Fund campaign in 1968, Gregor contributed his "fair share." Following a meeting in the Wendy Ward Room which was part of the 1969 campaign , he told Carey that he would not again give 1/2 percent of his earnings. Some days later on the selling floor during working hours, Carey "approached me concerning the United Campaign." Some days later two management trainees on the selling floor during working hours said, "We came by to collect for the United Campaign, Bay Area Crusade." Gregor replied, "Would you please not bother me now ? I will contact you sometime else, some other time," and walked away. On one occasion, Lois Cook asked Gregor to contribute to a gift for an employee who, was leaving. On another occasion, Vanderwater asked for an application card . Gregor replied, "I will see that you get one ." Gregor passed the request on to Likissas. On Sunday afternoon , January 11, Gregor was sitting alone in the buffeteria: Mr. Reine approached me and asked me whether I was going to the dinner that night . I said, "Yes, I am, Al. It will do you some good to go down yourself because you, as a salaried employee should come down and find out what is going on. On Sunday evening, when Brant asked Gregor if he was going to the union dinner: I said, "I sure am." -I just notified -my wife not to prepare dinner for me. I am, going down to the union to have dinner" .. . His comment was, "I would like to go with you." I said, "Be my guest". On either Monday, January 12, or Tuesday, January 13, John Feijo, a commission salesman in the sewing machine department, asked Gregor for a union application . Gregor told him to see Likissas. It was the practice in the big ticket departments for the department manager to obtain the paychecks of the salesmen in his department and to distribute them on the floor. Wednesday was payday. Wednesday, January 14, and Thursday, January 15, were nonwork days for Gregor. At about 10 a.m. on Wednesday , Gregor called at the store and asked the assistant department manager, Dick Severi, for his paycheck . Severi replied that Gregor would have to go to the cashier's cage and be paid in cash. After collecting his pay, Gregor visited eight employees in three or four departments, seeking information for his sports column in "Monty's Words." About the middle of his rounds, when entering the buffeteria, he noted that he was being followed by a security officer. Gregor left the store at noon and went home to lunch with his son. On Thursday, January 15, Gregor entered the store by a customers' entrance, deposited his copy of "Monty's Words" on Lois Cook's desk and left without talking to any employee. At about 4:15 p.m. on Friday, January 16, while Gregor was talking to a customer , Severi told him that he was wanted upstairs by Carey. Gregor replied that he would be up in a few minutes . A few minutes later the message was repeated by the department manager, Maxwell, who received the same reply . Another few minutes and Carey in person invited Gregor upstairs . As they entered Carey's office, Gregor observed the security manager, Thompson, sitting at Carey's desk . One other person was also in the room. Carey left and Thompson said: "I have been directed to run an investigation on the solicitation by the union. . . . It has been reported to me that on Wednesday you contacted a boy in the paint shop and you wanted to sign him up for the union. ,..." I said This is a big lie . I will tell you right now somebody fabricated this story. I was not in the store on Wednesday. He said, "Do you mean to tell me, Mr. Gregor, you were not in the store on Wednesday?" I said, I beg to differ with you, I was in the store on Wednesday and I will tell you exactly what I did in the store and whom I contacted. Gregor then described his movements in detail . Thomp- son asked if he was willing to make a statement, and Gregor replied, "I sure will." As Gregor started to write. his statement, Thompson said: .No, I will tell you what to write." He told me how to start it and I wrote it out and I gave him my statement to the best of my knowledge. I indicated I had no knowledge whatsoever of contacting Mr. Reine in the paint shop or anyone else concerning union activities. Thompson picked up Gregor's statement and he and the other individual left the room . Carey returned and announced that Gregor was being suspended "until such time as an investigation is completed ." Carey added that Gregor would receive his regular draw during his suspen- sion. Gregor asked for his pay to date. Carey went with Gregor to the cashier's cage where he received his pay through January 16 in cash . Gregor turned in his briefcase to Maxwell, left the store , and has not returned for any purpose since. - On Wednesday, January 21, 1970 , at 4:15 p.m. Carey telephoned Gregor and announced : "Frank, your employ- ment at Montgomery Ward is terminated . . . for union solicitation . . . you can come up and get your pay any time." Carey complied with Gregor's final request that his pay be mailed to him. 3. Likissas' testimony Jerry Likissas began working for Respondent at its Chestnut Street store August 15, 1966, and transferred to Serramonte 2 weeks before the grand opening. He worked in the rug department as a commission salesman under Department Manager Kearney. In August 1968, during working hours on the selling floor , Likissas purchased automobile insurance from an agent introduced to him by Kearney. He was solicited many times for personal gifts. The first'occasion was right after the grand opening in 1968 when "somebody from the office" came down and asked Likissas whether he wished to contribute to a gift for a merchandiser who was being transferred . The last was sometime in November or December 1969, when a lady came down from the payroll department and asked him to contribute to a gift for another lady who was retiring after 25 years of service. Likissas gave $1. During the United Bay Area Crusade in 1969, Likissas did not respond to an invitation over the loudspeaker to attend a meeting in the Wendy Ward Room. Immediately after the meeting, in the MONTGOMERY WARD & CO. 985 rug department, Carey. said "Jerry, you didn't attend the meeting." Likissas replied that he could not spare the time. Next day Carey personally solicited, a contribution and Likissas gave him $5. Likissas bought tickets to the Christmas party from Gregor during working time and observed Department Manager Mendez selling a ticket to Feijo, also during working time. At a meeting in the Wendy Ward Room addressed by a company official, a questionnaire was distributed with about 100 questions, including "are you a member of the union, like the union, if you like the company, how long are you with the company." In November 1969, Mendez entered the carpet depart- ment about 10 a.m. and, addressing Likissas and his fellow salesman, Snyder .. , says, first of all, "Hey, you guys, have you joined the union?" Mr. Snyder says, "That is my business. If you ask me personal that is my business." He said, "You might be fooled, you know to join the union because you know what you have coming" I said, "What do you mean by that, what we have coming?" He said, "You will go out of the store as soon as the company finds out you are members of the union." He told me, "You, as a matter of fact, are very active. I have information you are very active member of the union." I said, "Listen, this is the selling floor, this is the company's time and my time and I want no conversation about that in the middle of the floor." He says, "Well, listen, if you want to keep your job, boy, don't get too smart." He left and went across the department. When cross-examined about the foregoing, Likissas added the following details: And besides that, you just remind me, he says "you are already on the blackboard Jerry, Be careful you are going to be out the door. . . . He warned me, he said, "I am warning you." Shortly before Christmas 1969 when Kearney returned from lunch, he announced to Likissas and Pecorvsky: "Somebody by the name of Red he approached me outside and he asked me if I wanted to join the union .. and I told him I wish I, could, but I am the manager, I can't." [Kearney] says, "You know what they want from us? All they want is just our money, we commission people, and we would be crazy to join the damn union." On Thursday, January 15, 1970, at about 5 p.m., Likissas asked Reine, from whom he had "bought a lot of paint," what kind of paint he should use for the outside of his mother's house. After Reine had stated his opinion and Likissas was ready to go, I asked him, "A], do you know anything about the union?".He says, "Oh, yes, Jerry, but I haven't signed anything. I hesitate, you know, because from what I hear the unions go after our money." I said, "Oh, this is baloney. We have a lot of benefits, you know." He says, "I hear about dental insurance, hospital insur- ance, things like that." I said, "Well to my knowledge, everything is true. I know the union gives 100 per cent hospital insurance as well as dental insurance." I pulled out an application from my hand and I said, "Here, Al, take it home and if you like it, sign it and give it back to me, if you don't like it throw it in the garbage can." And I left. Describing the same incident on cross-examination, Likissas testified: Q. (by Mr. Chevalier) Then you handed Mr. Reine an application, I believe you testified, is that right? A. Right. Q. How did you hand it to him, rolled up in something? A. No. I had it folded in my pocket. He was giving me some literature to read about the vinyl paint for the outside of the house. He was doing this and I was doing that. Q. Did you have the application inside something else in your pocket? A. No. I have just one in my left pocket and I do this, I just took the literature for the paint, put it on top of the literature and I said, "This is the application." He put it on top of the counter. Likissas immediately thereafter affirmed the truth of the following portion of a pretrial statement dated February 5, 1970: A] said "I'll have to think about it". I believe I had a magazine in my .hand, rolled up into a tube and the union application card inside the magazine. I pulled out the union application card and handed it to Al and said, "Al, this is a union application-do you want to take it home and think about it?" On Friday, January 16, 1970, Carey called Likissas on the intercom and asked him to come to the office. Likissas replied that he was engaged with a customer. Five minutes later Carey called again, told him to leave the customer and come to the office "right now." When Likissas entered Carey's office, Thompson was sitting at the desk and Carey and another man were in chairs to the side. Mr. Thompson, the security officer said, "sit down Jerry . . . I have to talk to you. . . . Did you give an application to somebody by the name of Al?" I said, "No, I don't give no application to nobody." . . . He says, "Well, never mind about that. I want you to sign a statement, a written statement, and tell me all about it." I am not going to write no statement to nobody. Then Mr. Carey took these two men . . . outside his office ... and then they came back. So Mr. Carey told me, "I have to terminate your employment Jerry." I said, "What for? I am with the company almost four years and it happens to be one of the finest salesmen you have in the department." He says, "I can't tell you the reason right now, but I am terminating your employ- ment. You can wait outside for your check." I said, "No, sir, I no wait outside for my check. You can mail my check". He said, "I am going to take you down to the department." Before we went he said, "I have to investigate and then I will let you know, but you have to go home now. You are terminated. On Carey's instructions, Likissas delivered to his manag- er the carpet samples which he was required, as an outside salesman, to carry in his car, and left the store. In response to leading and suggestive questions by the General Counsel, Likissas further testified: 986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .. . they asked me if I was attending the union dinners. . . . Well I went there and he said, "You were involved in dinners and things like that. You gave an application to Al," that's the' way they accused me when I got to the office. . . . He told me, "You went to the union dinner." I said, "How do you know, you wasn't there. How do you know I was attending the dinner?" Anyhow, I didn't tell him anything. I refused to answer the questions, you know. Questioned further by counsel for the Union, Likissas identified Thompson as the speaker and: Q. (By Mr. Jellison) Do you recall any other details he said about union activities or union dinners if he said anything? A. Well, this is how he accused me, you know, he accused me, "Would you like to tell us what you have been doing there?" He said who else was there and things like that. I said, "I don't know nothing about it." Then he told me, "You gave an application to Al," you know, from the paint shop. I said, "Who is Al?" He says- Q. (interrupting) You don't need to repeat it over again what was said. 11 On Wednesday, January 21, 1970, at about 5'p.m., Carey telephoned Likissas: He said, "Jerry, I terminated your employment today. You are going to receive all your money." I asked Mr. Carey, "Mr. Carey, are you going to tell me specifically why you fired me for?" He said, "Yes, Jerry, for union activities." On April 15, 1970 (2 days before the election), at about 9:10 p.m., while Likissas and Pecorvsky were standing at the' employee's exit, preparing to distribute leaflets, Freymann came out and Mr. Pecorvsky was handing out a letter like this and smiling; he said, "Mr. Freyman, do you want to read about it? He said, "I don't want to read that junk. I already have one in my office on my desk. . . . I was just explaining to the girls what kind of crooks you are. How much money are you getting to do that? . . . Why don't you all go to Russia. As long as I am here, the damn union will never step up in this store. I had rather fire all you animals to keep the union out of it." On cross-examination, Likissas testified that he had never read any notice on any bulletin board and specifical- ly had not read Brant's notice of October 9, 1969. Although he carried authorization cards and signed up a number of employees outside the store, he never solicited any employee, other than Reine, anywhere in the store at any time. 4. Smith's testimony Donald C. Smith has been department manager of the paint department since August 1968. On Wednesday afternoon, January 14: Jerry, the.Greek . . . came to the paint department and Al went up . . . to help him with some paint... . After Jerry left, Al came to me and told me . . . that Jerry was discussing the union with him. . . . Well, at the same time he also reported that Frank Gregor had approached him at an earlier. time, and there was. a second incident when Jerry, the Greek came to the paint department.... Al, to me at the time, appeared to be somewhat shook up by it, the whole situation. So I reported to Mr. Brant that Al had been approached by a fellow from the carpet department for union solicitation. 5. Carey's testimony Donald L. Carey is presently merchandise manager in Respondent's Petaluma, California, store . From May 20, 1968 (6 weeks before the grand opening), to February 1, 1970, he was personnel manager of Respondent's Daly City store. On Thursday, January 15, 1970, he was called to Brant's office, and Mr., Brant told me that a department manager by the name of Donald Smith had told him that one of his employees, Al Reine, had been approached in the paint department and . . . if Mr. Reine wanted to give a statement, that we should get a statement regarding this. Carey then telephoned Smith and asked him whether Reine desired to make a statement. Reine came to Carey's office and He told me that he had been approached in his department while he was working by an employee from the appliance department , Mr. Gregor. He told me that Mr. Gregor had asked him that if he wanted an application for the Union. He also told me that an employee-his name he did not know-had come to his department and give him the application for the Union. He indicated that the following day the same employee had come back to his department to ask him if he had completed the application. Immediately after Reine made these statements to Carey, Reine, Thompson, and Carey went down to the sales floor and "Mr. Reine pointed Mr. Jerry Likissas out as the individual who had given him the application." The following day, Friday, January 16, Carey called Gregor to his office. Q. (by Mr. Chevalier) What did you say to him and .what did he say to you? A. I said, "Mr. Gregor, there has been a statement made about you regarding solicitation on the sales floor" and I asked him if he wanted to give a statement regarding the incident. Q. What did he say? A. He said he knew of no incident, but he would be willing to make a statement. Q. Did he? A. Yes, I believe he did. Q. You say you believe he did. Are you sure he did? A. I don't recall for sure whether he did or not. Q. What did he say then? A. Well, let me back up. As I best recall, I'm sure he did give a statement. Q. What did you say or do then? A. OK. After he gave that statement, I reviewed the statement with Mr. Brant, the store manager. Q. When A. Immediately after he gave the statement. MONTGOMERY WARD & CO. 987 Q. The same day? A. The same day, while Mr. Gregor was still in my office. Q. What did you do then? A. Mr. Brant told me that I should suspend, Mr. Gregor pending further review of the statements. Q. A. Q. you? What did you do then? I suspended Mr. Gregor. What did you say to him and what did he say to A. I told him that he was being suspended at that time until we had a• chance to review the statements that had been made, and that I would let him know within a couple of days what the outcome of the review was. Q. What did he say to you? A. I don't recall that he said anything after that. He just left. On Friday, January 16, Carey called Likissas to his office, told him that a statement had been made about him regarding solicitation on the sales floor, and asked Likissas if he wished to make a statement. Carey told Likissas that the accusation had been made by Reine. Likissas replied, "I know of no solicitation," asked to be confronted by Reine, and refused to make a statement. Carey then went to Brant's office, reported what Mr. Likissas had said, and received instruction to suspend Likissas. I went back to my office and told Mr. Likissas that he was being suspended . . . for solicitation on the sales floor, and I told him I would let him know within-that we would review the statements that had been made, and then I would let him know within a couple of days what the outcome of that review was. Q. What did he say-then, if anything? A. I don't recall that he said anything. Q. What did he do then? A. He left the office and started back down to the sales floor. I went with him to his sales floor, to his department, and, told Mr. Kearney, his department manager, that Mr. Likissas had been suspended, and that he should get back any carpet samples that Mr. Likissas had in his possession. Q. Why did you do that? A. The carpet samples are' the property of the Company, and I felt that they should be in the store until we completed our review of the statements. On, Wednesday, January 21, 1970, Carey telephoned Gregor: I told him that he was being terminated for violation of company policy regarding union solicitation on the sales floor while he was working, or while the employee being solicited was working. Q. (by Mr. Chevalier) What did he say to you then, if you can recall? A. I don't recall that he said anything specific. He was surprised, and said, "OK." Q. Did you say anything else to him that you recall? A. No sir. Carey finally contacted Likissas by telephone on January 23. I said, "Jerry, we have made a decision regarding your suspension", and I told him, "You are being terminated for violation of company policy regarding solicitation on the sales floor." . . . He asked me again the reason. He said, "Mr. Carey, I don't understand why I'm being terminated. Why are you terminating me? So I again reiterated to him that, "You are being terminated for violation of company policy regarding solicitation on the sales floor." Q. What did he say then? A. He said, "OK." Q. Was that the end of the conversation? A. Yes, sir. Carey was in charge of the United Bay Area crusade, not only at Respondent's Daly City store but also on a loaned executive committee which collected from the employees of 9 or 10 other stores. United Fund meetings were held at Respondent's Serramonte store in August and September in 1968 and 1969, in the Wendy Ward Room on company time. Carey went down on the floor to invite employees to the meetings, but did not contact employees on the floor afterward. "I was too busy concluding campaigns with my other firms." Carey was unaware of any solicitation of contributions to buy a gift for fellow employees. 6. Brant's testimony Robert John Brant has been manager of Respondent's Serramonte store since March 1968 (3 months before the grand opening). He authorized solicitations for the United Bay Area Crusade in 1968 and 1969. After the meetings in the Wendy Ward Room, the personnel clerk and the personnel manager make followups to see if the employees will turn in their cards either for acceptance or rejection. Respondent keeps a record of the names of contributors and the amounts of their contributions. Brant also authorized solicitation for the 1969 Christmas party. Although Brant spends from 25 percent to 30 percent of his time on the selling floor, he was unaware of any other solicitations prior to the complaint of Alfred Hung Lee on .October 6, 1969. He was not aware of any other unauthorized solicitation until Wednesday, January 14, 1970. On that date: Mr. Smith . . . came into my office . . . and he told me that one of his employees, Al Reine, had been approached by two parties regarding a union applica- tion, and that Reine was very upset about it, and that he wanted to know what he should do about it. . . . I advised him that . . . he could tell [Reine J that if he wished to make a statement on the subject, that I was in my office and would see him whenever he wished. Within a few minutes after Smith left, Reine entered Brant's office and Mr. Reine had told me that he had been approached on the day before that by Mr. Gregor, and on that day by someone that he identified as "Jerry", who worked in the carpet,department, regarding union application. He said he felt this was very unfair, and that he didn't like to be approached on the selling floor.... He told me that on the afternoon of January 13 that Mr. Gregor had spoken to him in the paint department and had said something to the effect that he was a very 988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD good worker, and wouldn't he like to have a union application. . . . He then said that on the 14th, in the afternoon, Jerry came to the department and gave him an application. Q. (by Mr. Chevalier) Did Mr. Reine report to you any other instances that he had been approached on working time? A. Not at that time. This was January 14. Q. Did you see Mr. Reine again regarding this matter? A. Yes, I believe on the next day that he came, back to my office and told me that he had been approached again by the same person from the carpet depart- ment... . As I recall, Mr. Reine came to my office and simply told me that he had been approached again by the man in the carpet department, Jerry, and that he had been asked by Jerry for the ap back; that Jerry had also talked to him for some time about paint, and that he felt that Don Smith, his department manager had observed the two of them together but had been too far away to hear them. At that time I asked Mr. Reine, would he care to make a statement to Mr. Carey on the subject and he said he would. So I called Mr. Carey and Thompson, and Carey took his statement. On the basis of Mr. Carey's report of his interview with Mr. Gregor and Mr. Likissas, after examining all of the statements and ascertaining that the solicitation rule had been violated, I made the decision to terminate - Mr: ' Likissas and Mr. Gregor, and I directed Mr. Carey to do so. Q. Between the period when you suspended Mr. Gregor and terminated Mr. Gregor, was there any further investigation? A. Other than the examination of the personnel policy and the statements that were given, no. The decision to terminate Gregor and Likissas was made by Brant on Wednesday, January 21, 1970. The reason was "non-conformity to company policy and violation of the solicitation rule." Brant directed Carey "to tell them that they were terminated on the basis of a violation of the solicitation rule." 7. Mendez' testimony John L. Mendez has been manager of the sewing machine department since the store opened. Mendez was on the committee and sold tickets for the 1969 Christmas party, but only in the buffeteria and at the party itself. Mendez understood, from instructions he had received, that he could be discharged if he sold Christmas party tickets on company time. Although John Feijo worked as a salesman in his department, he did not sell a ticket to Feijo. In November 1969, John Feijo was across the aisle, talking to Likissas and leaving the sewing machine department uncovered. Mendez told Likissas, "Leave my employees alone during working hours." Mendez did not overhear any part of the conversation. In January 1970, after being discharged, Likissas accosted Mendez in the store with insulting and threatening remarks. Mendez did not at any time make any of the statements attributed to him by Likissas. 8. Reconciliation of the testimony of Gregor, Likissas, Reine, Smith, Carey, Brant, and Mendez Likissas is volatile , loquacious, dramatic, and, I believe, imaginative. Gregor is careful and meticulous . Thirteen of his service years were spent in military intelligence. Reine and Likissas have in common the very human trait of seeking to justify in the eye of the beholder all of their past actions and statements by inventing bolstering details, which once uttered, become, in the mind of the speaker, unalterable truth . Carey is a laconic individual who gave the impression of having successfully obliterated from his memory the detail of an unpleasant business in which he was a prime actor. Brant's testimony that solicitation of Reine by Gregor and Likissas was reported to him on Wednesday, January 14, cannot be credited. Likissas and Reine are in almost complete agreement as to the substance of their conversation when the union card was passed. Reine's description of the reaction of his parents has the ring of truth, and fully explains his panicky confessions the following day. Reine was sure that the card was passed on Wednesday . He talked to his parents Wednesday night. He spoke to Brant only once, on Thursday, and he did not identify Likissas to Carey and Thompson until Friday. When Brant told Reine "If you would like to make a statement, there will be no problem," Reine in his apprehensive state could only regard these words as a threat. When Reine was interrogated by the security officer, he invented , possibly at the suggestion of Thomp- son, the visit from Gregor on the previous day. Having told Thompson that he was visited on the same day by both Gregor and Likissas, this fiction was in his mind translated into fact . After Gregor's statement had been taken and his movements verified, it became apparent to Brant that Gregor had left the store before Reine reported for work and could not have spoken to Reine on Wednesday. Brant then invented ' the Wednesday conversations with Smith and Reine, with the object of pushing back the Gregor conversation to a possible date . Furthermore, if Reine had in fact reported the clear and obvious violation of the company rule to Brant on Wednesday, Brant would certainly have required an immediate statement, and not waited for a second report from Reine. In support of Reine's testimony that he was not in the store on Sunday, January 11, records were received in evidence demonstrating that he did not work on that date. In further support of his own denial , Reine testified that on Sunday, January 11, he drove with his family to the Russian River, a distance of 90 miles from his home, to observe whether his aunt's cabin had been damaged by flood . This portion of his testimony is rendered suspect by the fact that the Russian River did not rise to damaging heights until more than I week later.2 I find that Reine, who lived in the adjacent community of south San Francisco, visited Respondent's store on Sunday, January 2 Contemporary issues of San Francisco Chronicle, a metropolitan newspaper of general circulation. MONTGOMERY WARD & CO. 989 , 11, and had the conversation in the public buffeteria described by Gregor. This was the "earlier time" men- tioned in Smith 's testimony. There was received in evidence a questionnaire used in an attitude survey conducted in September 1969 which constitutes a complete refutation of the testimony of Likissas that it contained any reference to union member- ship or sympathies . This evidence of imagination , and the manner in which the testimony was adduced , causes me to question the accuracy of Likissas ' recitation of his interrogation by Thompson . Nevertheless , the failure of Respondent to call Thompson as a witness , or to offer any explanation for his absence , and the failure of Carey to deny this portion of Likissas ' testimony requires me to find that Thompson did interrogate Likissas concerning the union dinner of Sunday, January 11. The same factors cause me to credit Likissas as to the substance of remarks made by Freymann 2 days before the NLRB election, since Freymann did not testify. I do however regard Likissas' recitation of his conversa- tion with Mendez in the carpet department in November as the product of an over fertile imagination . Mendez' denial is fully credited, particularly in view of the fact that Likissas was not called in rebuttal to deny any part of the less than convincing testimony of Mendez , describing his other contacts with Likissas . For similar reasons, I discredit the testimony of Likissas concerning the sale of a Christmas party ticket to Feijo by Mendez on company time. Other factors tending generally to disparage Likissas' reliability as a witness are his complicated and contradicto- ry reasons for failure to read the bulletin board , and his argumentative insistence on cross-examination that he did not know the meaning of the word "suspended" though ultimately and grudgingly admitting that Carey may have used the word when he was sent home on Friday, January 16. One further factor influencing my decision to credit Mendez over Likissas is the failure of the General Counsel to include in his complaint any paragraph which could possibly be applied thereto. For the reasons heretofore stated I conclude and find that Gregor did not violate Respondent's rule against distribution and solicitation, that Brant knew, at least by Wednesday, January 21, 1969, that Gregor had not violated the rule, and that Brant discharged Gregor to discourage union membership and protected legitimate activities on behalf of the Union. Likissas did willfully violate the rule with full knowledge of the possible consequences thereof . Whether his discharge was justified and excused by this fact depends in part upon testimony hereinafter considered and evaluated. E. Discharge of McGaughy 1. McGaughy's testimony James Michael McGaughy was a regular part-time employee in the hardware and electrical goods department. He was hired in July 1968 before the store opened. In October 1969, he signed a union authorization card and thereafter had several conversations concerning the Union with his department manager, Alen Klenz. He told Klenz he was in favor of the benefits the Union was offering, particularly their medical plan . Klenz did not express any opinion of the Union . McGaughy distributed about 10 union authorization cards, being careful to observe the restrictions in Brant's October notice, which he had read. In December, while the cashier on the second floor was cashing his check , she asked him to buy a ticket to the Christmas party. At the union dinner on Sunday, January 11, McGaughy sat with Orcutt and Spahn. Conrad (Bud) Johnson was the assistant manager of the sporting goods department which was separated from the hardware department only by a wide aisle. McGaughy and Johnson were good friends, and were planning to go hunting together in northern California the 'weekend of January 24-25, 1970. At about 9:15 p.m. on Thursday, January 15 (15 minutes before closing time), with no customers in either depart- ment, Johnson was cleaning up a large fibreglass boat which had just come out of the warehouse. The boat was in the aisle between the two departments. We started talking about these boats. . . . I asked him how much the boats were to sell for and he said the most expensive one would sell for approximately $2,500. . . . I asked him how many do you usually sell in a year and he said "quite a few." I asked him, "Do you make any commission on these , are you on commission if you sell one of these boats?" He said, "No." He said that he had heard that the store in the future was to offer a 1 per cent commission on the sales. . . . I told him I had heard of this myself, but believed this to be one of the benefits the Union had offered.... At that point he said something to the effect, "What do you think of the Union, or what is your opinion of the Union?" I then proceeded to explain to him I was in favor of the union benefits .. . especially the dental plan. . . . He asked me what I knew about the Union and I said , "I actually don't know that much. If you wish to find out any more yourself, why don't you personally try and find out. Contact one of these people from the union or go to one of these dinners." At one point in the conversation one of the sporting goods clerks approached. Q. (By Mr. Berkowitz) Do you know that employ- ee's name? A. I now know his name. His first name is Carl. Even to this day I don't know his last name. Q. Did Carl participate in that conversation at all? A. Not that I remember. Q. He did not? A. No. He approached us. I don 't remember if I was speaking to Mr . Johnson at the time he approached us, but I noticed him approaching to ask Mr. Johnson a question, I believe he discussed something with Mr. Johnson, I was looking and inspecting this boat during this whole conversation. I believe I just turned my attention to the boat and away from them to let them have-their conversation, whatever it was. Q. Did you offer Bud Johnson a union card at that time? A. Absolutely not. On Friday, January 16, at about 7 p.m., McGaughy was 990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD called to Carey's office. Thompson was at Carey's desk and Carey was sitting in a chair on the side. [Thompson] explained to me I would be paid for the time I spent in the office. He handed me a sheet of paper with something written on it to this effect, that I would be paid for this time, and he had me sign it. Then he proceeded to explain there had been a charge filed against me . . . this charge would have an investigation and I would possibly be suspended for' this. I then asked him what it all had to do with and he said . . . "Bud Johnson filed this charge against you in connection with a conversation you had with him last night". He then asked me if I would be willing to write a statement as to what we said in that conversa- tion. . . . I asked what specifically am I being charged with and I believe Mr. Carey spoke back and said, "You will be notified," or something to that effect .. . at that point I agreed I would write the statement. [After McGaughy wrote the statement] I asked Mr. Carey what was going to happen now and he 'said I was to consider myself suspended, that pending an investi- gation I would be notified as to the outcome of this investigation. McGaughy then left the store. On Wednesday, January 21, McGaughy telephoned Carey. I asked if there had been a decision made and he said yes, that I had been terminated, that the store no longer felt it required my services and that I could come down either that afternoon or that evening and pick up my paycheck and my vacation paycheck for the last hours I had worked. Q. (By Mr. Berkowitz) In the conversation on the 16th, when you were first called into Mr. Carey's office, was Carl mentioned in that conversation? A. No, I jdon't believe so, not that I can remember. Q. So far as you can remember now, Bud John- son's name was the only one mentioned? A. Yes. 2. Johnson's testimony Conrad (Bud) Johnson was hired by Respondent before the store' opened in 1968. In January 1970, he was assistant manager of the sporting goods department under Depart- ment Manager Cohen. McGaughy was a friend of his and they had many discussions about many things, including hunting and fishing. On Thursday evening, about 8:30 or quarter to 9: Well, Jim McGaughy came across the aisle and started talking. Well, he said, "Do you know there's a union vote coming up?" And I said, "No, I didn't." And he asked about the boat, and how much it cost, and then he started talking about the benefits of the Union and commissions . And then Carl, who was one of my salesmen, came up for a price, and Mr. McGaughy and Carl started a little discussion about it. . . . The first thing that was talked about was the boat. . . . I told him it was a tri-hull boat, and how it rode and what engine it used. He wanted to know how much it cost . then he said, how much commission did you make on it and I told him none. ... He said did I know of the benefits of the Union. I said, No, I didn't. He said that you could make a commission on the boat if the union was in the store.... Carl came up and . . . interrupted the discussion.... Carl said that the Union would just bleed you, and their benefits'weren't that good. And then Mr. McGaughy said that they were that good. . . . Mr. McGaughy told me that they did give dinners. That was before Carl came up .. . and that he could have someone explain the benefits to me.... Due to the fact that when Mr. Cohen isn't there - Mr. Cohen leaves at five o'clock or 5:30, and I'm responsi- ble for the department after that, and Mr. Cohen is very strict about the department being run the way he wants it, and the way he wants it. . . . I went to Mr. Carey the next day. I told him there was a disturbance in my department the night before, and it had to do with the Union. Mr. Carey asked me if I would make a statement to that effect and I said yes. I was called upstairs later in the afternoon and I did make a statement. On cross-examination, Johnson testified: [Mr. Carey] wanted to know if they were soliciting; if the union was soliciting.. .. I told him that Carl got' excited about it, and that I thought he should know about it.. . . I told him that Carl had a fight with the union, and-not a fight. I said that Carl and I had an argument over-and Jim had a discussion over the union. The statement written and signed by Johnson at 5:41 p.m. on Friday, January 16, witnessed by Thompson and Carey, recites: My name is Bud Johnson. I am employed as asst. mgr. in the sporting goods Dept, at Montgomery Wards at Daly City. I am giving this statement of my own free will. No threats or promises were made to me. It was 9:00 P.M. and I was working on the boat, this was 1/15 when Jim McGaughy came up to me and asked if I was going to join the union. I said I did not know. Then he asked if I was going to vote for the union. I said I did not know there was going to be a vote. He said they had dinners and drinks and would explain it. He did not say when the next dinner was. He did explain some of the benefits that the union would get for us. This statement is true and correct to the best of my knowledge. 3. Carey's testimony On the afternoon of Friday, January 16, An employee by the name of Bud Johnson came to my office and told me he had been approached on the sales floor the previous night and asked if he wanted to join the union. . . . He told me he had been working in his department cleaning the boat. An employee from the electrical hardware department had come across the aisle. ... The conversation had begun with the employee asking about details about the boat and then had continued when the employee from the electrical hardware department asked him if he was going to join MONTGOMERY WARD & CO. 991 the union . . . he identified him as Jim McGau- ghy. . . . He told me that Mr. McGaughy had asked him if he wanted to join the Union, and that Mr. McGaughy had asked him if he was being paid commission on the boat, and had started talking about some of the benefits of the Union. Johnson made a statement to Thompson in Carey's office. Carey took the statement to Brant and received instructions to obtain a statement from McGaughy. Carey, by telephone called McGaughy to his office and in the presence of Thompson, I told him that an employee in the sporting goods department had made a statement regarding solicita- tion on the sales floor . . . he said he would make a statement. . . . After Mr. •McGaughy gave the state- ment, 'I reviewed the statement with Mr. Brant, the store manager, and Mr. Brant told me that I should then tell Mr. McGaughy that he was suspended, which I did. On Wednesday, July 21, Carey telephoned McGaughy, When I called him, I said, "Jim, we have made a decision regarding your suspension, and I have to inform you that you are being terminated for violation of company policy regarding union solicitation while you were working, or while an employee you were soliciting was working." Q. (by Mr. Chevalier) What did he say? A. Nothing, that I can recall. "OK. Goodbye." 4. Brant's testimony On Friday, January 16, Carey entered Brant's office, He told me that another employee had complained of being solicited for union membership . . . the employ- ee who had been solicited was Bud Johnson, and the employee who supposedly did the soliciting was Jim McGaughy . . . late in the evening shift the night before. . . . Mr. McGaughy started a conversation with Mr. Johnson, and later shifted the conversation over to talk of union, and talked to Mr. Johnson about joining the union, or going to a union dinner. Somewhere during the course of, that conversation Mr.' Fothroe had apparently come up to ask about a price, and then entered into the conversation to some degree. On the basis. of the statements of Johnson, McGaughy, and Fothroe, Brant suspended McGaughy and on Wed- nesday, January 21, decided to terminate McGaughy for "nonconformity to company policy and violation of the solicitation rule. 5. Mendez' testimony In January, McGaughy walked up to Mendez and, handing him a piece of paper, said, "Here." The paper read, "You are invited to a dinner," gave the place and date and was signed with the Union's name. Mendez said, "Why are you giving me this for?" McGaughy replied, "You ought to come, you might learn something." Mendez promptly took the invitation upstairs and gave it to Carey. When I gave the dinner invitation to Mr. Carey I told him I got it from Jim, the fellow on the sales floor, and he asked me if I was going I told him "no" and I gave him the card..... I regarded Jim's invitation to the dinner to be a violation of the Company rule. 6. Reconciliation of the testimony of McGaughy, Johnson, Carey, Brant, and Mendez Johnson's actions make sense only if I credit McGau- ghy's testimony that Johnson, by his questions, indicated an interest in the Union. This, if reported to Cohen by Fothroe, could jeopardize Johnson's position. Johnson, motivated by fear, as was Reine, sought to protect himself by implicating Fothroe and McGaughy. Johnson reported, untruthfully, that they had created a "disturbance," had a "fight" and "argument," with McGaughy taking the prounion side. In the statement taken by Thompson from Johnson, there was no reference to the antiunion advocacy of Fothroe. There was injected, possibly at the suggestion of Thompson, the words, "asked if I was going to join the union." Mendez' testimony concerning the dinner invitation is either imaginary, or the incident took place after McGau- ghy's discharge. The incident as recited by Mendez was a clear and flagrant violation of Respondent's rule, yet Carey took no action thereon. I conclude and find McGaughy recalled accurately and testified truthfully to his conversa- tions with Johnson, Carey, and Thompson. F. Discharge of Pecorvsky 1. Pecrovsky's employment, union activities, and Respondent's commission system Martin W. Pecorvsky was hired by Respondent August 28, 1965, and transferred to Serramonte in July 1968. He worked as a commission salesman in carpets and other floor coverings under Department Manager Tom Kearney. Pecorvsky was one of the Union's first recruits, and one of the "key" people in its organizing campaign. He attended all of the union dinners, had lunch with Orcutt in open restaurants in the Mall at least once each week, and obtained signatures on union authorization cards. His guarantee or "draw" through October 8, 1968, was $2.00 per hour. On October 15, 1968, it was raised to $2.50 per hour, or $100 for a normal 40-hour week. Each week in which his commissions failed to exceed the "draw," the amount of deficiency was noted and became a debt owing to Respondent, which was expected to be repaid out of future commissions. For example, Pecorvsky's commission sheets for the period, Week Ending Connission Guaranteed Owed to Date Earned 3/ or Draw Respondent 11/20 / 68 $474 . 18 $100.00 none 11/27 /68 45.41 100.00 $ 54.59 12/4/68 52 .09 80 . 00 82.50 12/11/ 68 35 .53 43 .75 62.81 4/ 12/18/ 68 46 . 81 100 .00 116.00 12/25 /68 90 . 72 86 .75 112.03 1/1/69 1/8/69 37.87 268.55 8 8 .00 101.50 none 163. 60 5/ "Montgomery Ward Procedure" in effect throughout Pecorvsky's Serramonte employment was: MINIMUM GUARANTEE 3 His commission was 6 percent, 7 percent, or 8 percent,,depending on the type of sale. 4 The clerk preparing the commission sheet erroneously carried over $54.59 instead of $82.50. The correct amount owed to Respondent on December 11, 1968, was $90.72. This error was not discovered by Respondent and resulted in a windfall of $27.91- to Pecorvsky. 6 Failure of the clerk to pick up an error in the December 25 sheet resulted in a loss to Pecorvsky of $1.44. 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD An employee is not to be paid less than $1.40 for each hour worked (Effective February 1, 1968-$1.60 per hour). UNEARNED GUARANTEE REGULAR EMPLOYEES - When the Guarantee amount in a given payroll week exceeds the commission and S.U.B. earnings for an employee, a deficit is in- curred. The store manager is to review all such deficits each week. If an employee accumulates a deficit for any four consecutive weeks, the store manager may cancel the full amount of the accumulated deficit. If an employee accumulates a deficit for any six consecutive weeks, the store manager is required to cancel the full amount of the accumulated deficit. When a deficit is cancelled, the store manager is required to sign the commission sheet to effect the cancellation and conduct a personal interview with the employee. This authority may not be delegated. The purpose of the interview is to review the condition causing the deficits and determine the correction- required to avoid repetition. Should an employee require two consecutive interviews (or three interviews during a year) he should be transferred to a non-commission area or terminated. In store usage, a salesman in a deficit position is said to be "in the hole," and cancellation of the accumulated deficit is called a "writeoff." 2. Pecorvsky's testimony No material finding herein is based on the testimony of Pecorvsky. He made one written statement before the election and four written statements after the election. None contains any reference to the remarks of Freymann, 2 days before the election, described in vivid detail in the testimony of both Likissas and Pecorvsky. Pecorvsky's testimony that Spahn sat in the carpet department in December 1969 and, An the sight and hearing of the department manager, discussed union business is contra- dicted by Spahn. Pecorvsky's testimony that he had $54 taken from his paycheck on January 15, 1970, is contradict- ed by original company records, as is his testimony that he dug himself. out of the hole,. after a discussion with Freymann in October 1969. Finally there is no corroboration for Pecorvsky's improbable testimony that he passed out 70 to 100 cards in 50 of the stores 100 departments, or his even less probable testimony on cross-examination, that he gave out 125 to 150 cards openly on company time. 3. Carey's testimony Every week the operations manager recaps the employ- ees that haven't earned their draw. Mr. Freymann and myself and Mr. Brant would discuss the employees that were on the list, that had not earned a draw, and between ourselves try to make a decision on what might happen, or whether they were going to make it or whether they would not. Carey reviewed a great quantity of Pecorvsky's commission sheets and, in a discussion with Freymann and Carey, We decided that it was apparent that his performance was unsatisfactory, in that department, and that most likely he would not be able to make his draw in any other department. Q. (by Mr. Berkowitz) Why was that? A. Basically because of his attitude, his sales ability. Questioned further by counsel for Respondent, Brant testified that transfer as an alternative to termination was rejected "because of his attitude in general. ... His attitude was that he didn't seem to be aggressive, as a commissioned salesman should be, and that he was really not concerned." Neither Pecorvsky's department manager nor any other department manager was consulted on his observation of Pecorvsky's attitude, or on the possibility of transfer. On January 21 in Carey's office: I told him that I was terminating him for failure to make his draw 'over a prolonged period of time. I told him that this was the third time he was being written off, and that we could not continue it any longer. I told him that his sales were low and not sufficient to make his draw. He told me, . . . "Mr. Carey, this does not come as any surprise to me. I had planned to go into my own business, anyway." ... I told him that our records would show that he had been terminated for his failure to make his draw, and he was being terminated because of unsatisfactory performance. Carey then prepared for Respondent's permanent records a record of -"Personnel Office. Interview" on which he stated: Has been written off for unearned draw 3 times during the past year. Work was unsatisfactory-personal sales were not sufficient. Poor producer-cannot meet minimum requirements. Other employees terminated for failure to make their draw were: Julius Sires, Mary McCulloch, Joseph Brackett, Oscar Dela Rosa, and Ken Stella. 4. Respondent's records There were received in evidence Pecorvsky's weekly commission sheets from September 10, 1968, through December 31, 1969. (His commission sheets for the weeks ending January 7, 14, and 21, 1970, were not offered in evidence.) His total commissions for the calendar year 1969 were $6,857 and his draw for the same period was $4,682. There were 16 individual weeks in the year when his commission failed to exceed his draw. He was written off only once. His earnings for the period which included the writeoff were: Week Ending Commission Guarantee Owed to Date Earned or Draw Respondent 8/6/69 $147.94 $100.00 None 8/13/69 58.76 55.75 None 8/20/69 30.94 60.50 $ 29.56 8/27/69 22.68 95.25 102.13 9/3/69 121.46 81.00 61.67 9/8/69 121.46 41.00 21.67 9/10/69 78.37 95.50 78.80 9/10/69 78.37 35.50 21.20 9/17/69 51.58 98.00 78.80 9/24/69 92.56 '100.75 8.19 10/1/69 237. 17. 98.00 None MONTGOMERY WARD & CO. 993 The writeoff shown above as occurring on September 17, 1969, may or may not have been approved by manage- ment. No written approval appears on the face of the commission sheet. It may have been merely the bookkeep- er's method of washing out the obvious errors in the September reports. It is certain that Brant did not conduct the interview with Pecorvsky which was required by Respondent's manual. Pecorvsky's earnings for the last period for which records were offered were: Week Ending Commission Guarantee Owed to Date Earned or Draw Respondent 12/3/69 $217.44 $ 80.25 None 12/10/69 70.20 101.00 $33.30 12/17/69 118.27 110.00 15.03 12/24/ 69 Vacation Vacation 15.03 12/31/ 69 Vacation Vacation. 15.03 Cross-examined by Mr. Berkowitz, Brant read into the record from Pecorvsky's commission sheets of January 14 and January 21, 1970, the fact that he was $106.68 in the hole for January 14, and $154.54 in the hole on the date of his discharge. The termination sheets for the five individuals named by Carey as having been discharged for failure to make their draw show, as reasons, in Carey's handwriting: Julius Sires, discharged 10-29-696 Three writeoffs for unearned draw '6/4/69 $159.00 8/13/69 $132.00 10/8/69 $176.00 Unsatisfactory performance-Unable to earn enough to maintain draw. Mary McCulloch hired 4-9-69, discharged 6-25-69 Personal production not satisfactory. Was never to sell enough to get out of the red - Was also unsatisfactory in the handling of paperwork. Joseph Brackett hired 8-9-68, discharged 3-30-69 Joe was not able to deal effectively with an outside selling situation and was constantly not making his draw. Possibly could have worked out in some other position. Attitude was OK. Oscar Dela Rosa hired 7-19-68, discharged 8-3-68 Not cut out for commission sales. Poor producer. Cannot close. . Ken Stella Hired 10-2-68, discharged 1-"9 Terminat- ed because of unsatisfactory performance. Did not develop selling ability during time on job. The weekly commission sheets of B. Benson, received in evidence show: Week No. of Write-off Ending Weeks in Amount of authorized Date The Hole Write -off by Freymann 3/26/69 6 $ 20.67 yes 5/28/69 4 193.80 yes 9/10/69 7 12.11 yes 6 There were received in evidence, on motion of counsel for Respondent, commission sheets covering Sires' earnings from August 7. 1968; through The weekly commission sheets of D. Connor show: 5/21/69 6 $247.39 yes 6/18/69 4 16.36 yes 10/8/69 4 100.69 yes 11/5/69 4 125.05 yes J Connor's commission sheet for July 23, 1969, shows that after being in the hole for 7 weeks with an accumulated deficit of $182.50, she erased that debt with commissions of $278.16 against a draw of $88.75 for the week. 5. Brant's testimony The weekly commission sheets received in evidence in this proceeding "are the records on which I determined to discharge Pecorvsky, if they are complete. . . . There are written instructions beyond which we cannot go." There are the "Unearned Guarantee" section of the "Montgom- eryWard Procedure" manual. Q. (by Mr. Chevalier) How do you interpret that section? A. It gives the store the prerogative of writing off deficit earning and commission salesman four weeks, or the prerogative of extending that to six weeks. Q. How do you do that in your store? How do you decide whether it was four, five or six weeks? A. Usually you have to take into consideration the particular season that it might be; promotional events that might be coming up, and also the amount of arrears and the four weeks. At the end of four weeks, it would be rather obvious that the person couldn't sell his way out of the deficit. Probably write him off at the end of four weeks, if he had a few dollars in, and hopefully he would work his way out of it. Q. Do you sometimes write them off after four weeks? A. Yes. Q. What was your policy after six weeks? A. The company policy after six weeks is that they must be written off. They do not exceed six weeks. Q. Anything regarding the number of periods of write-off of a salesman? A. Yes. Q. What is that? A. Three-maximum of three write-offs in the 12 months period. Q. How did you interpret that? A. That at the end of a 12 month period, or during a 12 months period, if there was more than three write- offs, it was necessary to terminate the employee or move them to a different location. Employees may be and have, been terminated after one or two writeoffs. In the fall of 1969; September, early October, some- where in there . . . the operating manager called to my attention that Mr. Pecorvsky was in the write-off period for the third time that year, and that he needed December 25, 1968. These bear no relation to the deficit periods preceding his discharge October 29, 1969. 994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD my action and decision on the subject. As we investigated that particular situation, it was discovered, belatedly, that Mr. Pecorvsky had had funeral leave and had been reported to us after the fact, rather than before or during the period. . . . When we examined the situation, with the pay benefit of the funeral leave -that was a question in our mind, whether it was proper, at that time to take any action, other than the corrective interview with Mr. Pecorvsky regarding his' sales, and at that time I directed Mr. Carey to cover the subject with Mr. Pecorvsky's department manager and to inform him that his performance had been unsatis- factory on sales, and that we would expect him to take action if another write-off was necessary. Q. Now, the time of this conversation-was this after the second or his third write-off period? A. This would have been after his second. Q. When was Mr. Pecorvsky written off again? A. He was written off in early January or mid- January of 1970. Q. What action did you take then, if any? A. At that time I directed Mr. Carey ' and Mr. Freymann, our operating manager, to terminate Mr. Pecorvsky. In explanation of his disregard of Respondent's manual and in contradiction of his prior testimony that this manual set limits beyond which he could not go, Brant described the "special circumstances which justified the retention of Benson and Connor, each of whom had received three writeoffs within 7-month periods. There was no consideration of any "special circumstance" which might have justified the retention of Pecorvsky. 6. Respondent's reasons for the discharge of Pecorvsky Respondent has advanced only one specific reason for the discharge of Pecorvsky, i.e. "Has been written off for unearned draw three times during the past year" and that reason is false. Brant testified that "during a twelve month period, it was necessary to terminate the employee or move them to a different location." That statement is false. On the single occasion in the entire period from September 10, 1968, through January 14, 1970, when a deficit of Pecorvsky was forgiven, mandatory provisions of Respon- dent's manual were ignored. The store manager did not sign the commission sheet, and the store manager did not conduct a personal interview. Freymann's statement to Brant in September 1969 that Pecorvsky "was in the write- off period for the third time that year," while literally true, was without significance. As of January 1, 1969, Pecorvsky had been in the hole for 6 consecutive weeks, and on January 7, 1969, repaid his debt to Respondent from commissions of $268.55. On March 5, 1969, Pecorvsky had been in the hole for 5 consecutive weeks and on March 12 repaid his debt to Respondent from commissions of $146.72. The total amount forgiven Pecorvsky on Septem- ber 17, 1969, was $125.22, and this amount may have been reduced by paid funeral leave. By way of contrast, Durell Connor received four writeoffs totalling $489.49 in a 6- month period, and is still employed. Only one employee, other than Pecorvsky, has been discharged "for three writeoffs of unearned draw." His three writeoffs, June 4, August 13, and October 8, 1969, totaled $467, yet Julius Sires, despite this was not discharged until October 29, 1969. In contrast thereto, the "third writeoff" of Pecorvsky, relied on by Brant, resulted in immediate discharge. His accumulated deficit on January 21, 1970, was only $154.54, and had been incurred in only 4 working weeks. If Brant had examined his own records, and had given considera- tion to the factors of the "particular season" and the "amount of arrears," he would have seen that Pecorvsky's deficit of $163.60 accumulated during the last 6 weeks of 1968 had been erased on January 8, 1969, that during the calendar year 1969 Pecorvsky's commissions had more than doubled his draw in 15 weeks, and that there was no reason for concern. Brant makes no reference in his testimony to any conference with Carey and Freymann wherein transfer was discussed and attitude mentioned. I conclude Carey, in his testimony, was describing a general practice which was not followed in the discharge of Pecorvsky. Here again I am without any light which might be shown by the testimony of Freymann. The additional reason for Pecorvsky's discharge, advanced by Brant and advocated by Respon- dent's counsel, i.e. "unsatisfactory selling performance" rests on the testimony of Brant that a "big ticket salesman" such as Pecorvsky is expected to earn twice his draw in commissions." This testimony is effectively negatived by the following: Q. (by Mr. Chevalier) Over a year are employees expected to earn more total commissions than the total yearly draw? A. (by Mr. Carey) Yes, they would be expected to. Q. Substantially more? A. Yes. Q. Twice as much? A. No. One and a half times as much at least. From 1964 to 1966, Carey was floor covering manager in Respondent's Chico and Marysville stores and • spent 70 percent of his time selling carpets. Pecorvsky's commis- sions in 1969 were 146 1 /2 percent of his draw. Finally there is no evidence on this record that any percentage test was considered or applied in connection with the discharge of any other employee. I conclude and find that Pecorvsky was not discharged for any of the reasons stated by Respondent's witnesses, nor in Respondent's brief to me. G. Respondent's Rule Restricting Solicitation For the purpose of this decision I assume, but do not decide, (1) that the rule is lawful on its face and (2) was not promulgated for a discriminatory purpose. Neither the rule, itself, nor its promulgation is attacked by the General Counsel. Its promulgation on October 9, 1969, antedated the filing of the Union's petition and therefore cannot constitute a valid ground for setting aside the results of the election. The sole question before me is whether the rule was interpreted, maintained, and enforced "not to promote legitimate interests of production and order, but to impede the Union's organization of employees... ." N.L.R.B. v. Electro Plastic Fabrics, Inc., 381 F.2d 374, 376 (C.A. 4, 1967). MONTGOMERY WARD & .CO. , 995 From the day the store opened, July 31, 1968, through March 1, 1971, there were only four violations of the rule as it was interpreted by Store Manager Brant. In each instance, he took prompt and effective action. Witham and Lisha were warned on October 6, 1969, that solicitation of union membership on company time would result in discharge. Reports from supervisors on January 15 and 16, 1970, were immediately "investigated" by the plant security department; the three individuals suspected of having engaged in solicitation on behalf of the Union were immediately and ostentatiously suspended and, on January 21, 1970, discharged. Brant testified that he was unaware of any other violation of the rule. He also testified: Q. (by Mr. Jellison) Mr. Brant, at Ward's store in Serramonte, did it ever happen that anyone asked you to contribute for a personal gift for other employees being transferred to another location? A. I am sure they have. I can't recall specific instances. Q. (by Mr. Berkowitz) Is this rule always strictly enforced? A. Yes sir. Q. In your view, does it matter if there's pro-union solicitation or anti-union solicitation? A. No, sir. If it's solicitation, according to that statement, it's solicitation. Q. Well, maybe we better get a definition of solicitation from you, Mr. Brant. A. I would consider solicitation if someone came into the store trying to sign people up for the Union or the Elks Lodge. I would consider solicitation if the employees started soliciting all over the store for Mary Smith's baby, for Mr. Carey's promotion to Corte Madera, if they were soliciting for a gift all over the store, people on duty and so on, that would be solicitation. Q. If an employee took, say 15 seconds to talk to another employee about the Union, would that be sufficient cause to discharge him, in your view? A. Yes, sir, if it involved direct solicitation: Q. Would it matter to you. who initiated the conversation if indeed- A. No, sir. Q. -if indeed- A. Well, excuse me. I probably didn't answer his question. It would matter whoever initiated the conversation, would be the guilty party. Q. Is it your view then, that if an employee approached another employee and offered him a union card, and the second employee refused and stood there for 15 minutes, say, giving the reasons why he would not join the union, that the second man would not be guilty of violating the solicitation rule? A. I would have a difficult time with that decision, but I think the second employee would not be guilty unless he was trying to, sign the first employee up in whatever organization that he wanted to sign him up in. He was not soliciting. I mean discussing his viewpoint. Again, this would have to come to my attention before I would take any action at all. " Webster's New World Dictionary of the American Language, College Edition, 1968, contains the following pertinent definition of the transitive verb "solicit": 1. to ask or seek earnestly or pleadingly; beg; entreat: as we solicit your support, he solicited them for help. There can be no doubt that Respondent itself solicited for the Bay Area crusade, that this solicitation took place on working time and that to some extent it interfered with the earning opportunities of the commission salesmen required to attend meetings. All this solicitation, however, occurred before the posting of the rule, and may have been justified by its beneficent purpose. Serv-Air, Inc., 175 NLRB 801. There is no such justification for the disparate applica- tion of the rule as between solicitations to attend the employees' Christmas party and solicitation of union membership. Department managers at a supervisors' meeting were directed "get their employees to come to the party." Supervisors who had been directed to keep their "eyes and ears open" did not report to Brant or to Carey the flagrant violations of the text of the rule by Gregor when he was selling tickets at the invitation of Carey's secretary. Employees were solicited generally by loud- speaker to obtain tickets from the personnel office or from the cashier, and tickets were sold by the cashier, concom- mitantly with the discharge of her other duties. Carey, in instructing his committee, did not refer to the rule, did not forbid solicitation during working hours, but merely stated that tickets were not to be sold (i.e. pasteboards passed) on the sales floor, while either the solicitor or the solicited was working. On both Brant's and Webster's definition, the Respon- dent's rule against solicitation on working time was ignored in connection with the campaign to sell.tickets to the 1969 Christmas party and, by Brant's tacit admission, in the solicitation of contributions for gifts to departing employ- ees. I specifically find that the rule was interpreted and enforced to impede the Union's organization of employees. H. Surveillance From December 1969 through April 17, 1970, Mrs. Spahn walked through the store four or five times a day "to let the people know we were still around, still had their interests at heart, that we hadn't given up." Her only conversation with employees, other than those necessitated by the purchases which she made, were inquiries as to when they were having lunch and arrangements to meet with them outside the store. Each time she entered the number "9" was called on the loudspeaker to alert security. On all of her rounds, she was accompanied either by Carey, or by Carey's successor, DePape, or by Thompson, or someone else from security. On one or two occasions, Carey told her that she was not to disturb people when they were working 'and that he did not want her to talk union. In late March 'or early April 1970, DePape joined her at a buffeteria table, stating: "As long as I am going to be with you as long as you are in the store, I might as well eat with you." 996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union literature was passed out at the employees' entrance at the opening and closing hours. Security personnel was at the door in the morning, and either Brant or some member of his staff at the door in the evening. There was nothing unlawful in any of this surveillance. Before the store opened for business it was necessary that some person be stationed at the door to make sure that only employees entered. The presence of Brant or a member of his staff to bid employees "good night" was a long-established custom, and an obvious morale builder. Spahn, although she did purchase cosmetics, apparrel, and at least one other item was not a normal customer. Respondent was fully justified in providing her with an escort to ensure that she did not distract employees from their selling duties. This surveillance, though lawful, was thorough and complete and served the collateral function of identifying to Respondent those employees to whom Spahn spoke and those who accepted or rejected the union literature. 1. Interference, Restraint, and Coercion Alleged in the Complaint On either January 6 or January 7, 1970, on the selling floor, during working hours, Department Manager Gerd W. Zimmerman stated to employee Rosalee Blasingame, "I heard you signed a union card." When Blasingame inquired how he knew about it, Zimmerman replied, "I have my sources." Zimmerman then added that it would not be to the employees' advantage to have the Union because they would lose overtime, there would be no extra days off, and there would be a lot of changes in the way the department was run. J. Concluding Findings Reine, in answer to a "why" question by the General Counsel, identified Brant as "the union relations manag- er." This description is most apt. Brant, on first learning of union activity inside the store, (1) threatened the union advocates with discharge, (2) instructed his department managers to keep their eyes and ears open, and (3) posted a rule specifically forbidding solicitation on working time for "membership in unions, or fraternal, religious, social, or political organizations." (The rule did not specifically forbid solicitation for charitable, compassionate or gam- bling purposes.) On January 14, 1970, in a signed letter, Brant stated that benefits had been conferred by Respondent as a result of .employee suggestions, promising that further suggestions could result in more improvements, and concluding with the reminder: Remember, I have the power to make improvements. The Union does not without the Company's agreement and remember too that it costs you absolutely nothing to come and discuss problems with me. An article in "Monty's Words" distributed January 15, 1970, lists the improvements hinted at in Brant's January 14, 1970, letter. In a signed letter distributed to employees on March 3, 1970, Brant asserts that where the Union has contracts with Respondent the wage rates are lower than at Serramonte, with the clinching statement, "The point is, it doesn't cost Wards more money to have a union-it costs you.,, I have no doubt that Brant, in all his actions, attempted to stay within the law and that he honestly and sincerely believes that the best interests of his employees would not be furthered by union representation . In his determination to prevent the Union from organizing his store, he neglected ordinary prudence when he ordered the dis- charge of Pecorvsky. If he had examined Pecorvsky's records, he would not have permitted the discharge slip to show the false reason, "has been written off for unearned draw 3 times during the past year." Neither would he have included in a signed letter distributed to employees March 3, 1970, the false statement: During the 52 weeks prior to his discharge, his weekly earnings failed to exceed the draw in over half of them. The same lack of prudence was exhibited when Brant ordered the suspension of Gregor without checking the truth of Gregor's assertion that he was not in the store on Wednesday afternoon. When this fact was established to his satisfaction, belief in the correctness of his actions caused him to imagine , and ultimately to believe, that Reine reported to him, on Wednesday, a Tuesday conversation with Gregor. Similarly, he failed to recognize that the statement given by Johnson to Thompson was the product of suggestion and terror and far from the truth. Dispassionate , impartial investigation of the simple "dis- cussion of viewpoint," and would not, on Brant's defini- tion, conversation between McGaughy and Johnson would have revealed that this was a violate the rule. Finally, Brant was blind to the fact that the loudspeaker announcement of the Christmas party and the sale of tickets by the cashier on working time was solicitation of "membership in ... social organizations" specifically prohibited by the posted rule, and he was blind to the fact that Likissas' solicitation of Reine did not differ in any particular, other than content, from solicitation by the cashier. I find that Brant in ordering the suspension of Likissas, Gregor, and McGaughy, and in ordering the discharge of Likissas, Gregor, McGaughy, and Pecorvsky was motivat- ed entirely by the desire to discourage membership in, and lawfully protected activities on behalf of, the Union. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, as set forth above, occurring in connection with the operations of Respondent described above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and have led and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY In order to effectuate the policies of the Act, I find it is necessary that Respondent be ordered to cease and desist from the unfair labor practices found; to take. certain affirmative action, including the offering of reinstatement to four employees, with backpay computed on a quarterly MONTGOMERY WARD & CO. 997 basis plus interest at 6 percent per annum; and to post appropriate notices. Since the discriminatory, discharges found herein go "to the very heart of the Act,"'N.L.R. B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4), and reflect an attitude of opposition by Respondent to the self-organization of its employees, the commission of unfair labor practices in the future is reasonably to be anticipated from Respondent's past conduct. It is, therefore, necessary that Respondent be ordered to cease and desist from in any manner infringing on the rights of employees guaranteed by the Act. CONCLUSIONS OF LAW. 1. Montgomery Ward & Co., Incorporated, is an employer within the meaning of Section 2(2) of the Act engaged in commerce and in a business affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Department Store Employees Union Local 1100, Retail Clerks International Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively interrogating an employee, by threat- ening an employee with more difficult working conditions and loss of benefits, and by creating the impression that Respondent was engaging in surveillance of the union activities of its employees, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discriminating in regard to the hire and tenure of employment of Frank Gregor, Jerry Likissas, James McGaughy, and Martin Pecorvsky, thereby discouraging membership in the Union, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 5. By thus interfering with, restraining, and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act, Respondent has engaged in unfair labor practices within. the meaning of Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce. within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the National Labor Relations Act, I hereby issue the following recommended: ORDER? Respondent, Montgomery Ward & Co., Incorporated, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning union membership, activities, or sentiments. (b) Threatening employees with more difficult working conditions or loss of benefits. 7 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. (c) Creating the impression that Respondent is engaging in surveillance of the union activities of its employees. (d) Discouraging membership in or activities on behalf of Department Store Employees Union Local 1100, Retail Clerks International Association, AFL-CIO, or any other labor organization by suspending or by discharging employees or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment. (e) In any other manner interfering' with, restraining, or coercing employees in the right to self-organization, to form labor organizations, to join or assist the above named Union or. any other labor organization, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purposes of collective bargaining or, other mutual aid or protection, or to refrain from any or all of such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer to Frank Gregor, Jerry Likissas, James McGaughy, and Martin Pecorvsky immediate and full reinstatement to their former jobs or, if such jobs no longer exist, to substantially equivalent positions without preju- dice to their seniority and other rights and privileges and make them whole for any loss of earnings suffered as a result of the discrimination against them. Backpay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest added thereto in the manner set forth in Isis Plumbing and Heating Co., 138 NLRB 716. (b) Notify immediately the above-named individuals, if presently serving in the.Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (c) Preserve and upon request make available to the Board or its agents for examination and copying all payroll records, commission records,. personnel records and reports, timecards, social security payment records, and all other records necessary to analyze the amount of backpay due under the terms of this decision. (d) Post at its Serramonte store in Daly City, California, copies of the attached notice marked "Appendix."8 Copies of said notice on forms provided by the Regional Director for Region 20, after being duly signed by an authorized representative of Respondent, shall be posted 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 notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 20, in writing, within 20 days from the date of the receipt of this in the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Decision, what steps the Respondent has taken to comply herewith .9 REPORT AND RECOMMENDATION AS TO THE DISPOSITION OF OBJECTIONS It having been found that Respondent, after the filing of the Petition and before the election, (1) suspended and discharged employees to discourage membership in the Union, (2) interpreted and enforced a rule against solicitation to prohibit solicitation on behalf of the Union while permitting other types of solicitation, (3) coercively interrogated employees concerning their union activity, (4) threatened employees with lower wages and less favorable working conditions, and (5) promised benefits to employ- ees, all with the intent and the necessary effect of interfering with the exercise of rights guaranteed by the Act, it is recommended that the Board sustain the Union's objections and that the election held April 17, 1970, be set aside. It is further recommended that the Board remand Case 20-RC-9094 to the Regional Director for Region 20 to conduct a new election at such time as he deems the circumstances permit the free choice of a bargaining representative. 9 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read: "Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps,the 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 The National Labor Relations Board having found, after a trial, that we violated Federal law by discharging employ- ees for supporting a union, and by otherwise interfering with our employees' right to join and support a union: WE WILL OFFER full reinstatement to Frank Gregor, Jerry Likissas, James Michael McGaughy, and Martin W. Pecorvsky, and pay them for the earnings they lost as a result of their January 21, 1970 discharge, plus 6 percent interest. WE WILL NOT suspend, discharge or discriminate against any employee for supporting Department Store Employees Union Local 1100, Retail Clerks Interna- tional Association, AFL-CIO, or any other union. WE WILL NOT unlawfully interfere with our employ- ees' union activities. MONTGOMERY WARD & Co., INCORPORATED (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and This is an official notice and must not be defaced by anyone. 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, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 556-0335. TRIAL EXAMINER'S SUPPLEMENTAL DECISION STATEMENT OF THE CASE LEO F. LIGHTNER, Trial Examiner: This proceeding was heard before me in San Francisco, California, on April 26, 1972, pursuant to an Order of Remand issued by the Board on February 29, 1972. Full opportunity was afforded the parties to adduce evidence and to examine and cross- examine the witnesses, within the scope of the remand. Oral argument was waived. Briefs filed on behalf of General Counsel, Charging Party, and Respondent have been carefully considered. Background Based on charges, and amended charges, filed by the Union on various dates between March 20 and November 18, 1970, a complaint was issued on December 10, 1970. On the, latter date, by order the Regional Director ordered consolidation, for hearing and determination, of certain objections filed by the Union to conduct of Respondent affecting the results of an election held on April 17, 1970. The complaint alleged, inter alia, that Respondent discrim- inatorily suspended Frank Gregor, Jerry Likissas, and Jim McGaughy on January 16, 1970, and discriminatorily terminated Frank Gregor, Jerry, Likissas, Jim McGaughy, and Martin W. Pecorvsky on January 21, 1970; that since on or about November 21, 1969, and continuously to date, Respondent has published and discriminatorily enforced an illegal no-solicitation rule; that since on or about November 21, 1969, and continuously to date, Respondent has coercively interrogated employees concerning their union activity, has threatened employees, and has created the impression of surveillance of employees engaging in protected concerted activities. These asserted violations were included in objections, referred to the Trial Examiner by the Regional Director, in the initial hearing. In his Decision, issued June 7, 1971, Trial Examiner George H. O'Brien found the issues in Case 20-CA-5988 to be: (1) Whether Respondent's no-distribution, no-solicita- tion rule was discriminatorily applied to prohibit only prounion solicitation while permitting other types of solicitation. (2) Whether Frank Gregor and James McGaughy engaged in conduct violative of the Respondent's pub- lished rule. (3) Whether Respondent's invocation of the rule to justify the discharges of Frank Gregor, James McGaughy, and Jerry Likissas was pretextual. (4) Whether Respondent's assertion that Martin Pecorv- sky "was terminated because of his unsatisfactory selling MONTGOMERY WARD & CO. t 999 performance" was a pretext to disguise a discharge for protected union activities. (5) Whether remarks made by Department Supervisor Zimmerman to employee Blasingame, on January 6 or January 7, 1970, violated Section 8(a)(1) of the Act. (6) Whether Respondent's motive in discharging Gregor, Likissas, McGaughy, and Pecorvsky was to discourage membership in and protected concerted activities on behalf of the Union. Trial Examiner O'Brien found: the suspensions of Gregor, Likissas, and McGaughy on January 16, and the discharges of Gregor, Likissas, McGaughy, and Pecorvsky on January 21 to have been discriminatorily. motivated; that the no-distribution, no-solicitation rule was interpret- ed and enforced to impede the Union's organization of employees; and that Respondent had coercively interrogat- ed employees, threatened employees with more difficult working conditions or loss of benefits, and. created the impression that Respondent was engaging in surveillance of the union activities of its employees. In its Order of Remand, the Board asserted, inter alia, the Board, having considered the record, and Respondent's exceptions, on this issue [whether the Trial Examiner, in making certain credibility resolutions relating to the testimony of employees Reine and Gregor, misconstrued certain pertinent testimony of Reine] agrees with the Respondent that the Trial Examiner did misconstrue the record testimony of Reine and that he did rely on extraneous facts relating to an alleged trip by Reine to visit his aunt's cabin site. The Board is further of the opinion that the credibility issues raised by the conflicting testimony of Gregor and Reine cannot be resolved on the record before it, and that a further hearing before the Trial Examiner on the limited issues raised herein which involve the testimony of Gregor and Reine is necessary. Subsequently, upon motion, Trial Examiner O'Brien disqualified himself from further participation in the case. Upon the entire record, in this proceeding,' including my observation of the witnesses, I make the following: FINDINGS OF FACT including intrinsic and related issues, is considered seriatim. Q. A. Q. A. Q. held? Herein, Gregor related that he was seated at a table in the buffeteria, also described herein as Ward's Snack Bar, between 12 noon and 1 p.m. Reine joined him at the table and inquired whether Gregor was going to the union dinner : Gregor responded in the affirmative , and told Reine that Gregor would suggest that he go "because it would certainly do you some good , and you're one of the part-time employees here." They then had a discussion relative to a ring which Reine had purchased previously. The discussion of the ring continued for 5 to 7 minutes.2 Gregor related that he had erred , in his previous testimony, in asserting that his meeting with Reine was on January 11. Gregor called attention to his pretrial statement , given to a Board investigator, on February 10, 1970, in which he related that his meeting with Reine was "either on January 10 or 11, 1970, between 12 noon and 1 p .m." It is undisputed that Reine's timecard reflects that Reine did work on January 10, from approximately 9:15 a.m ., until shortly after 3:15 p.m. Reine acknowledged having met Gregorin the buffeteria, during which meeting the subject of the conversation was his .purchase of a ring, however, he placed the time of the conversation as December 1969. Reine was uncertain as to precisely when he obtained the ring. He asserted he had purchased it in October or November, that it had to be sized, and it was some 4 to 6 weeks later when he received it.3 Asked if he had a conversation with Gregor on January 10, Reine asserted, "I don't think so." Reine then denied knowing anything about union dinners on January 10. Reine's recitation relative to when he first learned about union dinners is garbled , inconsistent, and self-contradic- tory, and is next set forth. The following appears, on direct examination: Q. Did you ever attend a dinner that was spon- sored or paid for by the Retail Clerks Union? A. No. Evidence relative to: the business of the Respondent; the labor organization involved; the suspensions of Gregor, Likissas, and McGaughy on January 16; the terminations of Gregor, Likissas, McGaughy, and Pecorvsky on January 21; the discriminatory application of the no-distribution, no-solicitation rule; and Respondent's conduct relative to interrogation, threats, and surveillance; by agreement of all parties, is not within the scope of the remand, and evidence relative to the same was not presented. The evidence relates to two alleged meetings between Gregor and Reine. Gregor asserts the only such meeting occurred on January 10 or 11, 1970. Reine asserts the only such meeting occurred on January 14. The evidence, ' To preclude any misunderstanding, I am considering the testimony given before me by Gregor and Reine, and have considered the testimony given by them , in the earlier hearing before Trial Examiner O'Brien, for the sole purpose of determining consistency or inconsistency, whichever may be applicable. 2 In the earlier hearing, Gregor related that on the afternoon of January 11, he was in the buffeteria when Reine approached and asked if he were going to the dinner. Gregor responded that he was, and advised Reine that The Meeting of January 10-11 During the late '69? No. Late '70 period? No. Were you aware that such things were being A. Not until the last time I was in court. Q. In this trial? . A. When I was talking to you [Curran ]. I never knew there was any dinners or banquets. Q. You never saw any announcement or any employee invitation to them? A. No. it would do him "some good to go because as a salaried employee, he should come down and find out what is going on." The conversation relative to Reine's purchase of a ring then ensued. 3 In the first hearing, Reine related that Gregor inquired about his ring, in a meeting in the coffee shop, which preceded the Christmas party. It appears, from the undisputed recitation of Gregor, that the Christmas party was held on December 5. 1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD s On cross-examination: Q. In your earlier testimony, Mr. Reine, you said that you weren't aware there were any union dinners until the unfair labor practice hearing, which was held last year, [February,'1971 ]. Is that correct? A. That's correct. Q. Well, that's not entirely true is it, Mr. Reine? A. I'm not going to perjure myself, sir. Q. Well, isn't it a fact, Mr. Reine, that you had conversations with your department manager about the union dinners? A. No. Q. That's not true. Well, isn't it a fact that you had discussions with Mr. Carey about union dinners? A. No. Q. Didn't you testify in the original hearing that one of the. reasons you didn't attend union dinners is because you were afraid; you had received a threat? A. No. Q. You're positive of that, aren't you, Mr. Reine? A. I know for a fact that I never attended any meetings or any dinners. Q. Now, that's not what I asked you. I didn't ask you whether you attended any; I asked whether you knew about any. A. I know when we had the last court hearing; when.I came then, that's when I found out about the dinners and banquets or whatever you call them. Q. Right. Well, Mr. Reine, I am going to direct your attention to page 388 of the transcript of the original proceedings, on line 6, would you read that? A. "I never knew about it until I contacted my supervisor and.Mr. Carey." [Verbatim from the earlier transcript.]4 And I don't know what the question is. Q. Why don't you read the question, above, starting line 3? A. "I never knew about a union dinner from Mr. Gregor,".or anyone in particular. [Verbatim from the earlier transcript only to the name "Gregor".] Q. Now, that's my question, isn't it? Not anyone in particular in speaking about attending union dinners in general: And then you replied that you never knew about it until you contacted your supervisor and Mr. Carey. That you never knew they existed? A. That's correct. When we were talking about the court hearings last year. Q. Isn't it true that you testified that your parents had some friends who worked for Montgomery Ward, and that they had attended the Union dinners and talked to you about them? A. It could be; I don't remember all of it that far back. Do you know what happened two weeks ago or a month ago? TRIAL EXAMINER: Don't argue with counsel; just answer the questions. Q. You're quite definite in stating that that was the first time you ever heard about union dinners, and that was at the hearing. Now, Mr. Reine, I'm pointing out to you where you testified in the earlier hearing, in several instances, where you said that you were aware of union dinners. And now, I am going to bring them to your attention. A. O.K. Let me answer them for you. When I was talking to Mr. Carey, and writing down my papers, about the alleged things that happened and the things that happened here; this is when I found out about the dinners or banquets. I never knew about them before. Q. You never talked about union dinners with anyone in the store? A. No. Q. Is that your testimony now? A. No, I said'that I talked to them, the lawyer and Mr. Brant and Mr. Carey when we were being briefed as witnesses for the last trial that we had. That's when I found out about the meetings or dinners. Q. Now, Mr. Reine, I am going to ask you again, aside from your conversations with the attorney from Montgomery Ward; did you ever discuss union dinners with anyone else? A. With my parents afterwards. Q. After what? A. After I had talked to the attorneys and the people at Montgomery Ward's and the people are these people and Mr. Carey; not Mr. Gregor. Q. When did you talk to the attorneys from Montgomery Ward, how long before the trial? A. I don't exactly remember. Q. A month? A. A couple of weeks, maybe, I don't remember. Q. Now, when did you-I am going to read something to you and I want you to explain it to me, Mr. Reine. The question was, "Mr. Carey told you that there were union dinners," and the answer, "I don't know if Mr. Carey did, it was the second or third day. I know my department manager.said they were having dinners, and I found out. My mother works for Cee's [sic ]'Candies, and a friend of hers works with her and her husband or son or relative works in Montgomery Ward's in the automotive department and she said that this was right after I reported this to Mr. Carey and Mr. Brant and so forth; that they were invited to a dinner." Now, do you recall that? A. If that's what I said, then that's what I said. Q. Now, that's not an answer to my question. Do you recall testifying to that, Mr. Reine? A. I remember talking to my parents; I mean my parents talking to me about this person-I don't know the person's name-and I mentioned that-they knew I was involved-about the person giving me the applica- tion. This is when I found out, and that was about the same time, when I found out from the attorneys and Mr. Carey. Q. Now, let me show you another thing, Mr.' Reine. I am turning the page to page 389, "Who is your 4 However, Reine omitted from the earlier transcript, "I never knew they existed." MONTGOMERY WARD & CO. 1001 department manager?" is the question. Answer, "Mr. Smith, at this time." Question, "What did Mr. Smith tell you about the union dinners?" Answer, "He just said, `Well, you know there's been talk that there will be free dinners, big parties go on.' " Do you recall that conversation with Mr. Smith? A. No, I don't. I can't remember that far. Q. You can't remember that. Can you deny that that conversation with Mr. Smith took place? A. I can't deny it if I don't remember it. If I don't remember it, then I don't. know that it happened. Q. That's right. Actually, you can't really testify to a certain date, but the first time you knew about union dinners is when you attended the hearing, isn't that correct? A. I never knew about any union dinners or meetings until I got involved with an application from him, and I reported it to my supervisor and talked to him. Questions by Charging Party: Q. Your first discussion about the union dinners was at a time when your attorneys were still present, is that correct? A. I think so, it might have been when I went upstairs to talk to them, when I wrote that paper, that statement that he's handling. [Reine's statement to Respondent, dated January 16, 1970.] This is when I found out about these dinners or banquets. Q. And at that time, the company's attorneys were involved also, is that correct? A. I think so, I know one of the security men were. Q. And prior to the first trial, the first time, you talked to the company attorneys, was approximately two weeks to a month before the hearing date? A. I don't remember exactly. Q. What's your best recollection of how long it was between the hearing date and the date your attorneys, you talked to the company attorneys? A. I don't remember. Trial Examiner: Just a minute, I am confused. Are you now testifying-and I am not sure what you're testifying to, that at the time you gave the statement to the store officials, which was January 16, 1970, that that is when you first learned about the dinners, or are you testifying that it was shortly before the hearing in this case, which was in 1971, that you first learned about the dinners? A. It was between that time and then, sir. TRIAL EXAMINER: Well, now I thought you testified 5 General Counsel, in his brief, urges that while Reine initially, in this remand hearing, denied having any conversations with his department manager, Al Smith, or Carey, about union dinners, as set forth supra, in the original hearing, Reine did relate conversations with both Carey and Smith concerning the dinners. The following appears in the earlier transcript: "Question: What did Mr. Carey tell you about the union dinner? Answer: He didn't say anything that I recall. My manager and Mr. Carey, they said there had been dinners, telling about benefits, I would assume. I would just assume that this is what they were about. Question: Who was your department manager? Answer: Mr. Smith, at this time. Question: What did Mr. Smith tell you about the union dinners? Answer: Just said-Well, you know, there's been talk there will be free dinners, big parties going on." -earlier, and I am not trying to change your testimony, I am trying to understand it, that you didn't know anything about union dinners until approximately, the time of the hearing, when you were being interviewed by counsel for the Respondent, for the store, at which time you were told about the union dinners; I thought that was your testimony, am I wrong? A. That's what I said. The officials that were upstairs and,- TRIAL EXAMINER: But, this was in 1971, at about the time of the hearing. A. Approximately. That time I can't remember. TRIAL EXAMINER: Not a year before, when you gave the statement to Mr. Brant? A. Not until afterwards. TRIAL EXAMINER: How long afterwards? A. I don't know exactly. TRIAL' EXAMINER: Well, approximately, there are 12 months in between. A. I'm trying to be honest with you, I don't know exactly, the time. TRIAL EXAMINER: Well, was it close to the time of the hearing, or was it close to the time you gave Mr. Brant the statement in January, 1970? A. I think it was closer to the time when 'l gave the statement to Mr. Brant. TRIAL EXAMINER: How close? A. I guess that Friday or Saturday. [January 16, 1970 was a Friday.] TRIAL EXAMINER: You mean the same time you gave the statement, you found out about the union dinners? A. That's when I found out about the union dinners, when I was up there. TRIAL EXAMINER: Now, maybe I am wrong. I want to get one thing clear. I thought you testified earlier, and the record will show what your testimony is, that you knew nothing about the union dinners until shortly before you testified in the earlier hearing. Did you so testify? A. I think so, I can't remember that far.5 In view of the undisputed fact that Reine did work on Saturday, January 10, from approximately 9:15 a.m. until approximately 3:15 p.m.,,in view of the further fact that Gregor related that his meeting with Reine, in the buffeteria, could have been on either January 10 or January 11, I perceive no purpose in treating with the matter of whether Reine did or did not make a trip to the Russian River cabin of his aunt on January 11. Charging Party, in its brief, likewise calls attention to the future tense used by Reine in describing Smith's advice that "there will be free dinners, big parties going on." General Counsel, in his brief, also urges that Reine's denial of knowledge of the dinners is inconsistent with Reine's assertion that he did not attend the dinners because he had received a threat . In the remand hearing, Reine initially denied having so testified in the earlier hearing, then acknowledged that he had so testified . General Counsel calls attention to the fact that in the original hearing Reine asserted that he received a threat, by telephone, in late January or February, "after the election ," when in fact the election was held on April 17. 1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Events of January 14 In effect, Reine related that Gregor solicited his signature on a union authorization card on the afternoon of January 14. Gregor not only denies the solicitation, but denies that he was on the store premises at the time in question. The testimony of Reine and Gregor, relative to these events, is next set forth. Reine related that he reported for work at 1:30 p.m. on Wednesday, January 14. Reine asserted that Between 1:30 and 2 p.m., while Reine, was standing in the paint department, near the compressors, Gregor "came to me across the aisle," and said, "You're a pretty good worker, Al, let me get you an ap." On cross-examination, Reine asserted,that Gregor was passing the refrigerators, which were in the appliance department, and Reine was dusting the paint compressors in the paint department, when Gregor said, "Al, you're a pretty good worker, let me get you an ap for the Union." Reine described the refrigerators as being 4 to 6 feet away from the paint compressors. Reine asserted that Gregor then went in the appliance department, "presumably to a customer." Reine was uncertain but thought that Gregor remained in the appliance department until 2:15 or 2:30 p.m., explaining, "I think that a customer came to him, in the refrigerator department, or he came to a customer." Later, Reine's attention was directed, by the Trial Examiner, to the fact that he had given two different versions of what Gregor had said in this conversation, and was requested to state precisely what Gregor said.. At that point, Reine asserted that Gregor had said, "Al, you're a good worker, let me get you a union ap." Reine then acknowledged that maybe he had added the word "union," asserting, "I honestly don't remember" It is undisputed that Reine reported his version of the events of January 14 to Brant, the store manager, on January 15. On direct examination, relative to his report to Brant, Reine's testimony was: Q. Did you tell Mr. Brant that Gregor had given you an ap? A. Yes. Q. Gregor gave you the ap? A. Yes, I think he did. Q. Was it Gregor who gave you the ap? A. Yes, I'm positive. Earlier, on direct examination, relative to the events of January 15, Reine related: Mr. Gregor came to me on the previous day, and he said that, "You're a pretty good worker, and let me get you an ap." And I was by the paint compressors and so forth, and he gave me the ap, and I took it. Reine then related that he was approached a half hour, or 45 minutes later by Likissas, who, after discussing some paint, "asked if I had the application completed, and I believe I said that I would think about it." On cross-examination, Reine related as follows: Q. Now, I am curious as to the answer to the 6 In the earlier hearing, Reine asserted that, on January 14, Gregor approached him, about 2 o'clock, and said, "I hear you work kind of good, how about an ap?" Reine then asserted that Gregor had said, "I'll get you an ap." Reine then related that at about 2 o'clock Likissas approached him and gave him an application. On cross-examination, in the original hearing, question Mr. Curran asked you just before the break. Who did give the union authorization card to you? A. I think that Mr. Likissas gave it to me. Q. Right, but you testified that you told Mr. Brant that Mr. Gregor gave you the card. Is that correct? A. When I was talking, I said that I thought he gave me the card. Q. Well, in fact, Mr. Curran asked you about four times whether it was Mr. Brant-Mr. Gregor or Mr. Likissas, whether Mr. Likissas gave you the card or Mr. Gregor gave you the card. Isn't that correct? A. I can't remember. Q. Well, that was only five minutes or fifteen minutes ago, you can't remember that? A. I'm sorry.6 Gregor credibly related that he was not scheduled to work on either Wednesday or Thursday, January 14 and 15. Respondent's store has a newspaper, identified as "Monty's Words." At the time in question, Gregor was the sports reporter for the newspaper. It is undisputed that' Wednesday is payday. Gregor credibly related that he went to the store, on the morning of January 14, obtained his pay, then proceeded to interview specified department managers, and other employees, to ascertain if they had information, in various areas of sports, from which he could draft sports articles. Among other activities, he reported to Carey in the snackbar the cost of underwriting sponsorship of a baseball team. Gregor's home is about a 5-minute drive from the store. Gregor credibly related that he returned home, at approximatelynoon, to prepare lunch for his two sons who were in school, and did not return to the store that afternoon. On the morning of January 15, Gregor went to the administrative office, on the second floor, to turn in his sports column and immediately left the store.? Respondent, in its brief, seeks to place undue emphasis on the fact that Gregor, in his pretrial statement of February 10, 1970, a rejected exhibit, asserted that he arrived at the store about 10:30 or 11 a.m. It is undisputed that, in the original hearing, Gregor related that he arrived at the store on January 14 between 9:45 and 9:50 a.m. Gregor's recitation, in this hearing, corresponded to his earlier testimony. Gregor denied having any conversation with Reine on January 14. Gregor denied ever approaching Reine and asking him to sign an authorization card, or advising him that Gregor would arrange to obtain an authorization card for him. Gregor asserted his only conversation with Reine relative to the Union was as he related, in the buffeteria. Gregor denied ever attempting to organize anyone in the store or to hand out applications. Gregor related that there were two occasions when employees, identified as Van de Water, in the appliance department, and Fazio, inquired of Gregor as to whether he had union authorization cards. In both instances, Gregor advised the employees he did not Reine thought it was the following day , January 15, that Likissas gave him the union application. 7 1 have compared Gregor's recitation of his activities in the store on January 14 with his recital in the earlier hearing , and find no substantial variance. MONTGOMERY WARD & CO. 1003 have any. Gregor could not recall if he advised either of them to see Likissas to obtain 'a card.8 Contentions of the Parties and Concluding Findings Respondent, in its brief, urges that if Gregor arrived at the store, on January 14, at about 10:30 or 11 a.m., as set forth in his pretrial statement of February 10, 1970, and if Gregor remained in the store for 2 hours and 15 minutes, he could not have been home in time to meet his children for lunch, and his presence in the store would extend to "within a few minutes" of the time Reine.commenced work at 1:30 p.m. Gregor acknowledged that he might not have arrived at the store until 10:30 a.m., explaining that there was no particular reason for him to modify his arrival time. It is true that Respondent obtained an admission from Gregor that he might have been in the store as much as two hours or two hours and a quarter. However, Gregor also asserted that he could have been in the store only one and a half hours. Gregor's assertion that he left the store at approxi- mately noon, to take care of getting lunch for his two sons, conforms to his identical testimony in that area in the earlier hearing. Respondent sought unsuccessfully to establish that school regulations would have precluded one or both of Gregor's sons from returning horse for lunch on January 14. Respondent was not taken by surprise, since Respondent was on notice by reason of Gregor's recitation that he returned home about noon in the initial hearing. I find no merit in Respondent's effort at conjecture. Reine intimated that, on January 14, Gregor waited on a customer and remained in the store until 2:15 or 2:30 p.m. If Gregor's recitation that he had a day off, on January 14, was inaccurate, Respondent's timecards would so reflect. Respondent's failure to produce any evidence to vary this recitation of Gregor, particularly since this recital appears in the original record, is the basis upon which I find Gregor's recitation, that he did not work on January 14, credible. It follows that Reine was inaccurate. There is not a scintilla of evidence in this record to challenge the assertion of Gregor that he, at no time, possessed union authorization cards, distributed any to any employee, or solicited any employee to sign, an application card, with the single possible exception of the recitation of Reine. Reine's recitation of Gregor's purported statement to him, runs the gamut from, "You are a good worker, I'll get you an ap," a clearly ambiguous statement, if, as Reine contends, he had never previously discussed the Union with Gregor, to, "I'll get you a union ap," with Reine 8 In the initial hearing, at variance, Gregor related that he advised Fazio, in the vacuum cleaner department, and Van de Water, upon their separate requests to see Likissas to obtain the cards. Gregor then admitted advising Van de Water that Gregor would advise Likissas of the request of Van de Water. 9 In its brief, Respondent makes no reference to any of the testimony of Reine . Perhaps this is in part explained by Respondent counsel's observation, on the record, that Reine's testimony "is starting to get inconsistent with his earlier testimony." In its brief, Respondent asserts "the experience of counsel for Respondent is that remands only serve to correct the General Counsel or the Trial Examiner's procedural irregularities and thereby insure that their earlier conclusions will not be upset upon review by the courts. It would be acknowledging he may have added the word, "union," and, "I'll get you an ap for the Union," an obvious effort to eliminate the ambiguity. Reine was self-contradictory in asserting in the initial hearing that he received the union authorization card initially from Likissas, while, in this hearing, Reine asserted that' he was "positive" that it was Gregor who provided him with the union authorization card, at the same time that Gregor approached him.9 Reine in the initial hearing, and upon correction in this hearing, asserted that he was given the union authorization card by Likissas. However, herein having testified that it was Gregor who provided him with the union authoriza- tion card, Reine asserted that, when Likissas first ap- proached him, Likissas "asked if I had the application completed, and I believe I said that I would think about it." This is an impossibility if, in fact, Gregor had not previously provided Reine with a union authorization card, a fact which Reine later admitted. Accordingly, based on the recitation of Gregor, whom I credit, I find that Gregor was not in the store on the afternoon of January 14, did not have the alleged conversation with Reine, which Reine related, at any time, and that, in fact, Gregor did not undertake to obtain a union authorization card for Reine, and did not supply one to him. There is left for resolution the question of whether the meeting, related by Gregor, occurred on January 10. The briefs of General Counsel and Charging Party treat at length with the effort of Reine to deny knowledge of union dinners, at any time prior to approximately January 1971, a year after the principal events herein, immediately prior to the initial hearing. To prevent any misconception of the extent to which Reine sought to maintain that he had no knowledge of the union dinners prior to January 1971, after having so asserted in this hearing, I have set forth his recitation at greater length than would be normally desirable. The ring of truth appears in the recitation of Reine, in the initial hearing, in the following: Q. What did Mr. Smith tell you about the union dinners? A. Just said-well, you know, there's been talk there will be free dinners, big parties going on. Gregor related that the second such union dinner was held on January 11. It was for this reason that Gregor mistakenly related, in the earlier hearing, that his meeting with Reine was on January 11, rather than January 10. This record is silent as to whether any union dinners were held after January 11.10 Reine corroborated the recitation of Gregor that they did discuss a ring Reine had purchased, at a meeting in the a rare day, indeed, that an earlier conclusion was reversed on the basis of evidence introduced in the remanded hearing, particularly when the earlier conclusions were colored by such intemperate, unjudicial, unfair characteri- zations of testimony as was done here." I trust, and hope, that given time for sober reflection, a member of the bar, whose duties, as well as oath, encompass aiding in the administration of justice, through judicial hearings, will avoid repetition of such unprofessional and undignified observations. I find the assertion unworthy of rejoinder. 10 Smith, paint department manager, appeared as a witness in the initial hearing, immediately after Reine , but was not questioned relative to any conversation he may have had with Reine concerning union dinners. Smith did not appear as a witness in the instant hearing. 1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD buffeteria, but would place the time of meeting as December. Accordingly, on the basis of demeanor, and having found that the recitation of Reine is inconsistent and self-contradictory, as outlined supra, and that the recitation of Gregor was consistent with his earlier recital, I am, for the reasons set forth, constrained to find that Gregor did have a discussion with Reine in the buffeteria on January 10 to the extent related by Gregor. Charging Party, in its brief, urges that I should find that Gregor did not violate Respondent's no-solicitation rule; that Respondent unlawfully interrogated Reine; and that Respondent unlawfully discharged Gregor. The evidence essential as a predicate for such findings and the issues stated are not within the scope of the Remand. Respondent urges in its brief that the evidence is clear that Gregor did solicit Reine on January 14 and thus was not engaged in protected concerted activities. I have found, from the credible evidence, to the contrary. General Counsel, in his brief, urges that I limit my findings to findings of fact consistent with the credibility resolutions which I have made, and that the Board draw conclusions of law from such resolutions coupled with the evidence adduced at the earlier hearing. I have found that Gregor did not solicit Reine on January 14. The report of this alleged event made by Reine to Respondent, Respondent's subsequent action thereon, Respondent's no-solicitation rule, and Respondent's moti- vation for the discharge of Gregor are not within the scope of the remand; they are matters which relate to evidence presented in the earlier hearing, as distinguished from the evidence presented before me. Accordingly, my recom- mendations must be so limited. Recommendations Having found, as a fact, that Gregor did not solicit Reine on January 14, I recommend that the Board draw from such finding, coupled with the credible evidence adduced at the earlier hearing, such conclusions of law as are appropriate in arriving at its Decision and Order.'] 11 The procedural rights of the parties to file exceptions, the Board's hereafter, are set forth in fn. 7, 8, and 9 in the original Trial Examiner's Rules and Regulations relative thereto, and the rights of the parties Decision, and are incorporated herein by reference.