Montgomery Ward & Co., Inc.

MONTGOMERY WARD & CO., INC. - 165 Montgomery Ward & Co. Inc. and Miscellaneous Warehousemen, Drivers & Helpers Local 986, Inter- national Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America. Cases 21-CA-12417, 21-CA-12532, and 21--CA-12658 an answer denying the commission of the alleged unfair labor practices. Upon the entire record, from my observation of the de- meanor of the witnesses, and having considered the posthear- ing briefs submitted by the General Counsel and Respondent, I make the following: March 28, 1975 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On October 16, 1974, Administrative Law Judge Jer- rold H. Shapiro issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief and an erratum thereto; the Respondent filed a reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge: The hear- ing/in these cases held on August 13 and 14, 1974, is based upon unfair labor practice charges filed by Miscellaneous Warehousemen, Drivers & Helpers Local 986, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,' and an amended consolidated com- plaint issued on May 31, 1974, on behalf of the General Counsel of the National Labor Relations Board, herein called the Board, by the Regional Director of the Board, Region 21, alleging that Montgomery Ward & Co., Inc., herein called the Respondent, has engaged in unfair labor practices-within the meaning of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, herein called the Act. Respondent filed I On February 4, 1974, the charge was filed in Case 21-CA-12417. On March 20, 1974, the charge was filed in Case 21-CA-12532, and an amended charge was filed March 27, 1974 On May 7, 1974, the charge was filed in Case 21-CA-12658. FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Montgomery Ward & Co., Inc., the Respondent, is en- gaged in the retail sale and distribution of consumer goods on a national basis at stores and warehouses located in California and elsewhere throughout the United States. In its normal course of business, Respondent annually does a gross volume of business over $500,000 and sells and ships goods and mate- rials valued over $50,000 directly to customers located out- side the State of California. Respondent admits, and I find, that it is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. IL THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that Miscellaneous Ware- housemen, Drivers & Helpers Local 986, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, the Union, is a labor organization within the meaning of Section-2(5) of the Act. III THE SETTING AND QUESTIONS TO BE DECIDED Pursuant to a petition filed with the Board by the Union in Case 21-RC-13323 for a representation election to be conducted among the employees employed by the Respond- ent at its Los Angeles, California, warehouse, the Respondent and Union agreed that the Board would conduct such an election on August 31, 1973.2 Of the 58 employees in the voting unit, 28 cast their ballots for the Union, 24 against, with 6 ballots being challenged . The Board's Regional Direc- tor investigated the challenged ballots and on November 30 issued a report in which he recommended that the Union be certified as the employees' bargaining representative. Re- spondent appealed this Decision to the Board , which on Feb- ruary 22, 1974, issued its Decision wherein it denied the appeal and adopted the Director's findings, conclusions, and recommendations and certified the Union as the exclusive bargaining representative of all the employees in the appro- priate unit which consisted of two buildings 1-1/2 miles apart, referred to herein as warehouse number 1 and ware- house number 2, respectively, and collectively as the Los Angeles warehouse or facility. It is undisputed the Respond- ent was opposed to the unionization of its Los Angeles ware- house. Viewed against this backdrop, the questions to be decided in this proceeding are as follows: 1. Whether Respondent violated Section 8(a)(1) of the Act by threatening employees with economic reprisals and the loss of employment because of their support for the Union. 2 All dates hereafter, unless otherwise designated, refer to 1973. 217 NLRB No. 35 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Whether Respondent violated Section 8(a)(5) and (1) of the Act when, without prior notification to the Union, it hired casual employees to perform bargaining unit work in- stead of recalling laid-off employees. 3. Whether Respondent, in violation of Section 8(a)(3) and (1) of the Act, demoted employees, laid off and failed to recall 14 employees, and refused to offer to transfer these employees to a new location, because its employees had supported the Union. IV THE ALLEGED UNFAIR LABOR PRACTICES A. The Alleged Threats 1. The conduct of Walter Wise The complaint alleges that from about August 24 to 31, the day of the representation election , Wise threatened employees with reprisals if they continued to support the Union. Wise's ballot was challenged by the Union during the rep- resentation election on the ground that he was a statutory supervisor. The Board's Regional Director in his report on the challenged ballots made specific findings concerning Wise's employment status and concluded that Wise was a statutory supervisor . In its Decision, the Board adopted the Director's findings and conclusion pertaining to Wise's supervisory status. Respondent , during the instant proceed- ing, conceded that the Regional Director 's findings of fact, adopted by the Board, were correct but that the Board's ultimate conclusion that Wise was a statutory supervisor was not correct. Although afforded the opportunity, Respondent did not adduce evidence on this issue during the instant hear- ing. The General Counsel adduced testimony from Alfredo Delgado which lends support to the Board's conclusion in the representation case that Wise is a statutory supervisor. Based upon the Board's findings and conclusions in the representa- tion case (Case 21-RC-13323) which in the circumstances of this case I have accorded "persuasive relevance" (Amalgamated Clothing Workers ofAmerica v. N.L.R.B., 365 F.2d 898, 905 (C.A.D.C.) and on the whole record herein, I find that Walter Wise during the time material to this case occupied the status of a supervisor within the meaning of Section 2(11) of the Act. During the period immediately preceding the election, Wise was the immediate supervisor of the approximately five employees employed at warehouse number 2. Wise was op- posed to the unionization of the warehouse and had so in- formed the employees. Employees Richard Imperial and Ezra Cobb testified that before the election, Wise spoke to them in the warehouse office about the Union. It is this conduct that the General Counsel alleges constitutes an unfair labor practice. Wise, according to Imperial, in the presence of employee Conrad, told Imperial that he "hated" to see him get mixed up in the Union but that it was up to Imperial to make his own decision and to make a wise one. I do not consider this a threat which could reasonably restrain employees from exercising their right to support the Union. Likewise, I do not consider the remarks attributed to Wise by employee Cobb as a threat proscribed by the Act. Cobb, who was an active union adher- ent, went to Wise about a week before the election and volun- teered the fact that he was campaigning for the Union and explained why, whereupon, according to Cobb, Wise "just merely told me he didn't think [the Union] was a good thing for me to get involved in and he did not like to see me get involved in it. [Wise] said there would be hell to pay" [emphasis supplied]. Presenting a slightly different version of his reply, Wise at the hearing testified that he advised Cobb that he wished he would not-get involved in the Union and told Cobb that if he did get involved that it would lead to his getting "all screwed up" with adverse kind of things that go along with unionization such as strikes. Even accepting Cobb's version, what occurred does not establish an unlawful threat of reprisal. The substance of Wise's statement is not free from ambiguity. Cobb, who initiated Wise's outburst, must have known and expected that Wise, who was openly opposed to the Union, would react emotionally when he learned that Cobb was an active union adherent. Also, there is no evidence that during the preelection period or thereafter that Respondent otherwise engaged in any unfair labor prac- tices in an effort to combat the Union's organizational cam- paign. For all these reasons, I am not persuaded that the remarks attributed to Wise by Cobb reasonably tended to interfere with, restrain, or coerce Cobb, in the exercise of his right to support the Union. Based on the foregoing, I shall recommend that this allega- tion of the complaint be dismissed. 2. The conduct of Calvin Edwards It is alleged that Edwards threatened employees with the loss of job opportunity because they had supported the Union. In support of this allegation employee Cobb, who was an active union adherent and served as its election observer, testified that during the first part of January 1974 that Ed- wards, the manager of the Los Angeles warehouse, indicated to Cobb that there was a likelihood there would be another layoff of employees.' Cobb asked if it were possible for Cobb and the other three or four employees who used to work with him at warehouse number 2 to transfer to the Respon- dent's new warehouse located in Garden Grove, California. Edwards, according to Cobb's testimony, replied that he was sympathetic and that "if [Cobb] would make a letter of apology or explanation he would do everything he could for [Cobb] to try to see that we got a transfer." Cobb testified he was not sure of the words used by Edwards but was "almost sure" he used the phrase "letter of apology." Cobb initially did not testify that Edwards specifically indicated what it was that Cobb should apologize for, but then testified that Ed- wards had connected the letter of apology to "union mat- ters." This was Cobb's first version of Edward's response to his request for a transfer to the new warehouse. Later during his testimony, when asked to give his best recollection of Edwards' words Cobb testified, "He was just very sympa- thetic and said that he would do what he could. He men- tioned a letter of apology. That was about it." Only when it was suggested that perhaps Edwards also said something about the Union did Cobb remember, "He mentioned the letter of apology would be with regards to our involvement 3 Respondent, as described later, laid off six employees on December 27 MONTGOMERY WARD & CO., INC. in the Union." Later, at the conclusion of his examination, Cobb for the first time testified to an entirely new version of Edward's remarks. Now, according to Cobb, Edwards in response to his request for a transfer "stated that before the Union was involved the Company intended to transfer people to Garden Grove [the new warehouse]." This response was elicited in the form of a "Yes" to a leading question posed by General Counsel, to which Cobb then added, "[Edwards] just said there had been a change of plans. Some people were and some people won't [be transferred]. He was very sympa- thetic." Cobb's concluding testimony is not consistent with his earlier testimony. It attributes a significantly different response to Edwards when Cobb allegedly requested a trans- fer to the new warehouse. The manner in which Cobb pre- sented this testimony makes me very skeptical about its relia- bility, nor did Cobb generally impress me as a credible witness. For these reasons, I do not credit his testimony that such a conversation occurred between himself and Edwards." Based upon the foregoing, I shall recommend that this allegation of the complaint be dismissed. B. The Alleged Change in Employees' Conditions of Employment Without Affording the Union an Opportunity To Bargain It is alleged that "since on or about April 1, 1974, Re- spondent unilaterally, and without prior notification to or bargaining with the Union, made changes in terms and condi- tions of employment by hiring casual employees to do unit work instead of recalling employees in the [bargaining unit] on layoff status who had recall rights." The pertinent facts can be stated briefly. Respondent has employed casual employees to work in its Los Angeles warehouse ever since it opened. For example, during 1973, continuously until the layoff of December 27, an average of between two-to-four casuals were employed on a daily basis. They were not hired directly by Respondent but instead Respondent contracted with various employment agencies for their services. Each day Respondent determined its need for casuals for that day and placed an order with an employment agency. The services of casuals were required whenever the normal complement of employees could not perform the scheduled work. The casuals helped with the loading and unloading of trucks and box cars and swept up the warehouse. They performed the type of work generally done by the unit employees classified as "freight handlers." As indicated previously, following the layoff of six ware- housemen on December 27, Respondent employed no casuals until the 5-week period from April 1 through May 6, 1974, when it employed four, two of whom were employed on a daily basis and the other two worked a total of 12 days during this period. Respondent reimbursed the employment agencies $770.50 for their services. During this 5-week period, Re- spondent had a substantial number of employees on layoff status who were qualified to perform the work performed by the four casuals. Since this was apparently the first layoff at the Los Angeles warehouse, Respondent had no past practice 4 Edwards denied conversing with Cobb about transferring to the new warehouse 167 of recalling laid-off employees rather than employing casuals. Nor is there evidence that Respondent otherwise has a com- pany policy of recalling laid-off employees rather than em- ploying casuals or that Respondent generally was obliged by company policy to recall laid-off employees before-employing casuals.5 Finally, it is undisputed that Respondent did not afford the Union an opportunity to bargain about its employ- ment of the four casuals rather than recall laid-off employees to perform the work. Ultimate Conclusions As the certified bargaining representative of the Com- pany's Los Angeles warehouse employees, the Union had a statutory right to be given notice and an opportunity to bar- gain concerning any changes in the employees' terms and conditions of employment , Fibreboard Paper Products v. N.L.R.B., 379 U.S. 203 (1964), and N.L.R.B. v. Benne Katz etc., d/b/a Williamsburg Steel Products Co., 369 U.S. 736 (1962). I am of the opinion, however, that in the circum- stances of this case Respondent was not obliged to bargain with the Union over its decision to use four casual employees to perform unit work. The use of casual labor was but a recurrent event in a familiar pattern comporting with Re- spondent's usual method of conducting the operation of its Los Angeles facility. Its employment of the four casuals was merely a continuation, rather than an alteration, of pre- viously existing working conditions. In other words, Respon- dent's conduct did not involve a change in the status quo. Nor does the employment of the casuals at the same time em- ployees were on layoff status detract from this conclusion. For, there is no evidence that the Respondent has a practice or a policy of recalling laid-off employees in lieu of hiring casuals. There is no showing that Respondent by its conduct changed existing conditions of employment rather than merely continuing the status quo. Finally, in evaluating the conduct challenged herein, I have considered that it involved casual work of a very short duration, which in my view did not significantly impair bargaining employees' job tenure or employment security or reasonably anticipated work oppor- tunities. The question posed by this allegation is a troublesome one, but for the reasons set out above, on balance, I am of the opinion that Respondent did not violate the Act when it failed to invite the Union's attention to its decision to contract out for the use of casual employees instead of recalling laid- off employees to perform the work. C. The Alleged Unlawful Demotions It is undisputed that three bargaining unit employees, Al- fredo Delgado, Ezra Cobb, and Arthur Vasquez, were reclas- sified with a reduction in their rates of pay. The General Counsel alleges that Respondent in demoting these em- ployees was motivated by a desire to weaken the Union and rid itself of the Union's adherents. Alfredo Delgado, employed by Respondent since May 1970, was initially classified as a freight handler and in Febru- 5 The contention of the General Counsel advanced in his posthearing brief that, "All employees who had been laid off had recall rights," is without support in the record. 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ary 1971 was reclassified as a shipper checker . In June or July 1973, Delgado was transferred from warehouse number 1 to number 2 where he continued to perform the work of shipper checker. This work came to an end in November 1973 at which time he was transferred back to warehouse number 1. Upon his return, Delgado was not assigned shipper checker's work but instead performed freight handler 's work. He was not reclassified, however, until about January 12, 1974, at which time Supervisor Wise told him he had been reclassified as a freight handler, which resulted in his-earning 10 cents an hour less. Delgado did not protest or ask for an explanation, nor did Wise volunteer one. There is no evidence that the shipper checker's work performed by Delgado at warehouse number 2 ended for any reason other than a legitimate one or that in November 1973, and continuing thereafter, there was shipper checker's work available for Delgado , which he was discriminatorily denied. The facts pertaining to the reclassifications of Cobb and Vasquez are essentially the same. Cobb began to work for Respondent in warehouse number 1 as a freight handler in February 1970 and the next month was transferred to ware- house (number 2 where he remained until November 1973 when he was transferred back to warehouse number 1. Vasquez was hired in July 1971 as a freight handler-and was employed continuously in warehouse number 2 until Decem- ber 1973 when, with the closing of warehouse number 2, he was transferred to warehouse number 1 . During their em- ployment in warehouse number 2, Cobb and Vasquez were reclassified from freight handlers to forklift operators with a resultant increase in pay. When Cobb was transferred back to warehouse number 1 in November 1973, he retained this classification, but on or about December 27, the day the Respondent laid off six employees as described below, Cobb was notified by management , in substance, that Respondent had too many forklift operators in its employ and because of this, Cobb was being reclassified to the position of freight handler. Likewise, Vasquez, who had been transferred to warehouse number 1 on or about December 10, 1973, was informed he was being reclassified to the position of freight handler because the Company had too many forklift opera- tors. Cobb and Vasquez suffered a reduction in their rate of pay by virtue of their reclassification. When Cobb and Vasquez were reclassified, there were not enough forklifts to assign one to each of the warehousemen classified as a forklift operator. There were too many employees classified as fork- lift operators.' This situation arose because Respondent during November and December had transferred three fork- lift operators-Conrad, Cobb, and Vasquez-to warehouse number 1 from number 2, which was permanently closed on December 10, 1973.' The excessive number of employees classified as forklift operators became even more noticeable on December 27 when six employees classified as freight handlers were laid off for lack of work. This was when Cobb 6 Based upon the credible testimony of Walter Wise, which was essentially corroborated by the testimony of Warehouse Manager Edwards that in December 1973, Respondent had only about five or six forklifts G.C. Exh 5 indicates that at the time of the reclassification of Cobb and Vasquez that Respondent employed eight employees, including Cobb and Vasquez, classi- fied as forklift operators 7 There is no contention or evidence that the transfer of Cobb and Vasquez from warehouse number 2 ' to number 1 was impermissibly moti- vated. and Vasquez were reclassified. Following their reclassifica- tion, Cobband Vasquez continued to operate forklifts which was not unusual because it is undisputed, that warehousemen classified as freight handlers, as well as forklift operators, normally operate forklifts provided they are qualified to drive them . But, as Cobb admitted, in comparison to the employees classified as forklift operators, the freight handlers operate forklifts "on a reduced scale." Ultimate Conclusions The evidence, to sum things up, establishes that Respond- ent had a legitimate reason for reclassifying Delgado, Cobb, and Vasquez to freight handlers. Delgado's work assignment had ended 'and with respect to Cobb and Vasquez there were too many employees classified as forklift operators . The ques- tion remains whether in selecting these three for reclassifica- tion Respondent was motivated by their union activities. Re- spondent called no witnesses to explain its reasons for selecting these three for, demotion over others in the same classification. But it is the General Counsel that has the burden of proving a prima facie case before Respondent is obliged to justify its conduct. The General Counsel did not adduce sufficient evidence to prove prima facie a case of illegal conduct. Viewed most favorably for the General Coun- sel, the record shows that Respondent was opposed to the unionization of its Los Angeles facility and that one of the demoted employees, Cobb, was the Union's election observer and that the other two signed union cards and that employee Rudy Reyes, the Respondent's election observer, having the same classification and less seniority than Delgado, was, se- lected for demotion rather than Delgado. On the other hand, Respondent had a legitimate reason for demoting Cobb, Del- gado, and Vasquez, and the record does not demonstrate that in reclassifying them rather than three others that the Re- spondent deviated from company policy. Indeed, Respondent at the same time it was demoting Cobb and Vasquez from forklift operators to freight handlers was similarly demoting an employee, De La Paz, who did not sign a union card and who apparently did not otherwise support the Union. In this regard, there is no evidence that Respondent either knew or believed that Delgado or Vasquez had signed union cards or were otherwise union adherents .' Nor is the timing of the reclassifications especially significant coming over 3 months after a substantial number of the employees in the representa- tion election had indicated their support for the Union. Fi- nally, there is no evidence that Respondent in an effort to discourage its employees from voting for the Union went to the extreme of committing unfair labor practices. In this state of the record, I am not prepared to say that the General Counsel has prima facie proven that the reclassification of the employees involved herein was unlawfully motivated. Ac- cordingly, I shall recommend that this part of the complaint be dismissed. S The only evidence of union activities on the part of Delgado and Vasquez was the signing of union cards MONTGOMERY WARD & CO., INC 169 D. The Layoffs Respondent laid off 14 warehousemen, 6 on December 27 and 8 on January 25, 1974? The complaint in substance al- leges that in laying off these employees, Rsspondent violated Section 8(a)(3) and (1) of the Act. The pertinent evidence is set out and evaluated herein. On June 24, the Union commenced a campaign to organize the employees employed at the Respondent's Los Angeles warehouse, which consisted of two buildings, 1-1/2 miles apart, referred to as warehouse number 1 and number 2 and operated as one warehouse. The Union petitioned the Board to conduct a representation election and an election was con- ducted on August 31 with a majority of the eligible voters, as described in detail above, voting in favor of the Union, which resulted in the Union being certified by the Board as the employees' bargaining representative. There is no evidence that Respondent committed unfair labor practices in an effort to discourage the employees from voting for the Union, nor is there evidence that Respondent has failed or refused in any manner to fulfill its obligation imposed by the Act to recog- nize and bargain in good faith with the Union. The employees employed at the Los Angeles warehouse whom the Union successfully organized-the unit employees-can generally be classified as plant clerical, ware- house, delivery, and merchandising employees. The function of the Los Angeles warehouse at the time of the Union's organizational campaign was to receive rail and truck ship- ments, principally of major appliance and garden equipment, to warehouse them, and to deliver them to Respondent's retail stores in the Los Angeles Metropolitan area and to the homes of customers. Practically all of the bargaining unit employees were employed in warehouse number 1, which had been operated historically by Respondent under a long-term lease. Only about five or six employees were ever employed in warehouse number 2, which had been leased in 1970 for only a short term until the Respondent built a new warehouse.10 Warehouse number 1, an old building, was not adequate to efficiently handle the Respondent's expanding volume of business, and, in 1969, Respondent concluded that it required a new warehouse facility to supplement the Los Angeles warehouse and to house the clerical, merchandising, and delivery functions. The logical place for such a facility seemed to be in Orange County. A site was eventually found there in Garden Grove, which was 38 miles from the Los Angeles warehouse and plans were prepared in 1971 calling for the new warehouse to be so constructed that all of the delivery, clerical, and merchandising functions then being done at the Los Angeles facility could be transferred in their entirety to the new facility. This was decided because Respondent felt it would be impractical to have these functions performed at two locations. In addition, it was also decided by Respondent, at that time, that with the construction of the new warehouse, the Los Angeles warehouse could continue to operate as a 9 Kitzmiller, 1 of the 14, was absent from work January 25 on sick leave and was not notified of his layoff until his return to work on March 14, 1974 10 When Respondent's new warehouse in Garden Grove went into opera- tion in December 1973, Respondent as planned ceased operating warehouse number 2 on December 10 and the three or four employees remaining there were transferred to warehouse number 1. warehouse, and employ warehouse personnel who would continue to service the Company's retail stores from that location. Consistent with its decision to transfer the clerical, deliv- ery, and merchandising functions to the new warehouse, Re- spondent at the same time decided to transfer to the new facility all the employees then performing these functions at the Los Angeles facility, but since it had decided to continue to use the Los Angeles facility as a warehouse to service retail stores, no decision was made to transfer any of the ware- housemen to the new warehouse." Finally, it is undisputed that long before the Union's organizational campaign, as early as the spring of 1973, it was common knowledge among the Los Angeles facility's employees that Respondent was in the process of constructing a new warehouse in Garden Grove and that upon its completion all of the employees performing clerical, delivery, and merchandising work at the Los Angeles facility would be transferred to the new ware- house. The start of the construction of the new facility was delayed by various problems; i.e., zoning problems, and did not begin until February 1973 and was finished in October 1973. Then, it took several weeks to make the facility opera- tional, and it was not until the weekend of December 1 that Respondent transferred all of the delivery, clerical, and mer- chandising functions from the Los Angeles facility to the new facility. This move resulted in the transfer on December 1 of the 24 employees who had been performing these functions at the Los Angeles facility.12 Also during November and December Respondent began to hire and employ warehouse personnel at the new warehouse, and by the last week of December, had a substantial employment complement of warehousemen at that facility. During this period, because of the traditional Christmas rush, the Los Angeles warehouse was operating at peak'capacity and the warehouse's' personnel worked substantial amounts of overtime. However, by the last week of December, the Christmas rush had ended and at the same time the new warehouse commenced to operate as a warehouse and to service 9 of the Respondent's 14 retail stores located in the Los Angeles area. The Los Angeles warehouse, which had formerly serviced all 14, now serviced only 6 stores.13 The result was a reduction in the amount of work available for the warehouse employees employed at the Los Angeles facility, causing Respondent to layoff six on December 27 and an additional eight on January 25, 1974. 11 Respondent in planning the new warehouse did not anticipate that its opening would result in less warehouse work for the employees employed at the Los Angeles facility since Respondent's officials were of the opinion that its retail sales were growing sufficiently to support both warehouses without a reduction of employment. This belief was unduly optimistic, as described below. 12 Respondent, in addition to these 24 transferees, transferred 4 others from Los Angeles. John Pedroza, as operations supervisor, on November 1; Jack Huselton, as the leadman in charge of loading and unloading trucks, on November 2; Bob Coldenhoff, as dispatcher, on January 22, 1974; and Mick Ruck, as a furniture refinisher, on March 21 1974. 13 The decision resulting in the above apportionment of the retail stores between the two warehouses was arrived at during the middle of 1973 and was based upon a special study involving population density and the flow of traffic on the various freeways connecting the warehouses, the stores, and the customers of the stores. Under the circumstances, the fact that three of the stores assigned to the new warehouse for servicing may be physically closer to the Los Angeles warehouse is not sufficient to impugn Respon- dent's motivation in assigning these stores to the new warehouse. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The decision to lay off the employees was made by Jim Corley, the Respondent's senior warehouse manager, who has the ultimate authority over the Los Angeles and Garden Grove warehouses. Corley instructed Charles Kalberg, the personnel manager at the Garden Grove facility, to notify the employees about their layoff and to conduct separate termi- nation interviews . Kalberg was given its assignment rather than the manager of the Los Angeles facility, Calvin Ed- wards, because of his greater experience with the Company and its policies. Edwards had only recently, November 1973, assumed the position of warehouse manager. Of the employees laid off, it appears that 13 were classified as freight handlers and 1 as a forklift operator. The General Counsel, in his posthearing brief, has conceded that all 14 were laid off by seniority within job classification. Kalberg, during the course of the termination interviews , told the em- ployees, in substance, that they had been laid off because of a lack of work and had been selected for layoff based upon seniority within job classification. During the termination interviews, one or two of the em- ployees asked about employment at the new warehouse and were told they would have to personally visit the warehouse and apply there. When Thomas Kitzmiller-a laid-off employee-returned to the Los Angeles facility from sick leave in March 1974, he asked Los Angeles warehouse Manager Edwards for a job at the new warehouse, and Ed- wards informed him that he believed they were laying off employees at that location but that Kitzmiller should person- ally visit the new warehouse and talk with its personnel manager, Kalberg. Jeffry Kahn , a laid-off warehouseman, testified that on December 27 when Kalberg advised him about his layoff that Kahn asked for a job at the new ware- house. Kalberg advised him Respondent's policy was to hire only employees who lived in the vicinity of that warehouse. Kahn indicated that he met this residency requirement, and Kalbert invited him to visit the warehouse and fill out a job application, which Kahn promptly did. This treatment of Kahn is consistent with Respondent's policy of (1) requiring employees who desire to transfer from one facility to another to fill out a new job application at the new location ,, and (2) generally limiting the employment of employees to those who live in the vicinity of a facility.14 Consistent with this latter policy, each employee employed at the Garden Grove facility as a warehouse employee resides within the immediate vicinity of the warehouse.15 However, in situations where one of its operations either in whole or in part is terminated 14 This policy is motivated by a desire to foster good community relations and to reduce absenteeism and tardiness 15 I do not credit the testimony of warehouseman Olson that on December 27 dunng his termination interview that his request for a job at Garden Grove was summarily turned down, without explanation, by Kalberg. Olson was contradicted on this point by Wise, Kalberg, and Edwards, all of whom were present during his itnerview. Also, I reject the testimony of warehouse. man Doss that on January 7, 1974, at the Garden Grove facility, Kalberg denied the request of Doss and warehouseman Barnes that they be allowed to fill out job applications Barnes , an alleged discnminatee , was not called by the General Counsel to corroborate Doss , whose pretrial affidavit submit- ted to the Board is not consistent with his testimony , rather it indicates that no request was made of Kalberg for a job application when Doss and Barnes visited the new warehouse Kalberg , consistent with Doss's affidavit, credi- bly testified that Barnes and Doss simply asked For immediate employment, and when informed there were no immediate openings left without seeking to fill out job applications and transferred to a new location , the Respondent does not require that the affected employees who desire to work in the new location fill out new applications or meet a residency requirement. Likewise, persons who transfer to a new loca- tion in a supervisory capacity are not required to apply anew or meet a residency requirement. Thus, Respondent's transfer of the employees described above from the Los Angeles facility to the Garden Grove facility, without requiring new employment applications or a residency requirement, is not inconsistent with company policy. The General Counsel contends, however, that prior to the unionization of the Los Angeles warehouse, the Respondent in a like manner had decided to accord the warehousemen the privilege of transferring to the new facility without applica- tion and without regard to place of residence. The only credi- ble evidence presented on this point is that the manager of the Los Angeles facility, Chuck Mathews, told the warehouse- men in July 1972 that if they were interested in transferring to the new warehouse, they should submit their names to either Mathews or the warehouse foreman, Pedroza. Like- wise, Mathews told warehouseman Cobb in March 1970 that the men employed in warehouse number 2-the warehouse which was leased on a temporary basis-would be transferred to the new warehouse when it opened. Mathews left Respon- dent's employ on August 1, 1972, at which time he was replaced as manager by Jim Corley until November 1973 at which time Calvin Edwards assumed this position. Corley, prior to the unionization of the Los Angeles warehouse, openly indicated to certain clerical and delivery employees that they would be transferred to the new location. There is no evidence that Corley ever indicated that the warehouse- men would be transferred to the new warehouse , nor did Edwards. Respondent was not able to determine the basis for Mathews' above remarks because he died in August 1973 at at a time when Respondent had no idea that he had made statements which would involve it in this law suit. Under the circumstances, including the lack of evidence, that Mathews was privy to the decision involving the transfer of employees to the new warehouse, I do not believe that the remarks attributed to Mathews are sufficient to impugn the credible testimony of Respondent's District Operating Manager Calamia that Respondent never considered transferring warehouse employees from the Los Angeles facility to the new warehouse because Respondent had concluded that un- like the clerical, delivery, and merchandising functions that the warehousing function would continue to operate at the Los Angeles facility. To demonstrate that Respondent deviated from its plan to transfer warehousemen from Los Angeles to its new ware- house, General Counsel adduced the testimony of warehouse- man Doss that Los Angeles Warehouse Manager Edwards, at a meeting of the employees held between December 10 and 15, told them that it was likely that some would be trans- ferred to the new warehouse and others to retail stores. How- ever, the testimony of warehouseman Richard Delgado does not jibe with Doss'. Delgado testified that Edwards stated that Respondent's District Manager Davis would "try to find work" for the warehousemen at the Company's retail stores. Neither witness was particularly impressive on this point, and General Counsel did not question any of the other ware- housemen about this meeting. Edwards, who I credit, testi- MONTGOMERY WARD & CO., INC. fled that early in December a meeting was held to discuss certain work problems at which time an employee asked about the Company's policy concerning transfers to the new warehouse, and Edwards, who had just assumed the position of warehouse manager, replied he was not sure but believed that in some parts of the country Respondent's policy was to transfer satisfactory employees if they lived in the vicinity of the new facility but that if employees were interested in trans- ferring to the new facility, they would have to speak to Kal- berg, the personnel manager of the new facility. In considering whether Respondent's failure to transfer the 14 warehousemen instead of laying them off was dis- criminatorily motivated, I have considered the General Counsel's further contention that 1 week before the election of August 31 that District Manager Davis addressed the employees employed at the Los Angeles warehouse and stated that there would be some transfers from Los Angeles to the new warehouse but that he did not know who would be transferred. This contention is based upon the testimony of warehousemen Kitzmiller and Olson, whose testimony was not corroborated by three other witnesses called by the Gen- eral Counsel, who also testified about this meeting. To the contrary, warehouseman Imperial testified that Davis told the employees that no one employed in the Los Angeles warehouse would be transferred to the new warehouse be- cause Respondent was not going to have a union at the new warehouse. In connection with Davis' preelection speech, Respondent called one witness its regional labor relations manager, John Bennett, who impressed me as a credible wit- ness and whose testimony was corroborated by the testimony of General Counsel's witness Doss. Based on their testimony, I find that 1 week before the representation election of August 31 that Davis spoke to the employees in the voting unit to persuade them not to vote for the Union, and during this speech, Davis referred to the soon to be opened new ware- house in Garden Grove and said that it would open as a nonunion operation. An employee asked what he meant by this, and the question was referred to Bennett, who explained, "That it would open on a nonunion basis subject to the rights of the employees there to organize a union if they saw fit. The same as in the Los Angeles warehouse." Ultimate Conclusions It is undisputed that prior to the Union's organizational campaign, the Respondent, for legitimate business reasons, had decided to open and was in the process of constructing a new facility located in Garden Grove, California, for the purpose, among others, of serving as the warehouse for sev- eral of its retail stores located in the metropolitan area of Los Angeles, California. One result of this new warehouse, which opened for business during the normal course of events, was reduction in the amount of warehousing work performed by the Respondent's existing Los Angeles warehouse. Ware- houseman Cobb, a witness called by the General Counsel, in effect testified that with the opening of the new warehouse, which took over the servicing of nine of the retail stores formerly serviced by the Los Angeles warehouse, that there was a substantial reduction in the amount of warehouse work at the Los Angeles facility. The General Counsel apparently concedes that there was a substantial reduction in the work 171 starting late in December, which caused Respondent to need fewer warehousemen in its Los Angeles facility but urges that Respondent normally would have transferred the excess warehousemen to its new warehouse in Garden Grove rather than lay them off and theorizes that the failure to transfer them was "discriminatorily motivated and part of a devious plot . . . [to] weaken the Union and rid themselves of their adherents." The facts do not fit the theory. In failing to transfer the warehouse employees rather than lay them off, Respondent did not deviate from its normal procedures. The evidence does not demonstrate that during the normal course of events Respondent would have-trans- ferred rather than lay off the employees involved herein. Nor is there extrinsic evidence indicating that Respondent used the opening of the new warehouse as an excuse to retaliate against the warehousemen because they had supported the Union in the Board-conducted election. The record contains neither conduct nor statements by officials of Respondent indicating that Respondent would go to the extreme of ter- minating employees because they had supported the Union. Respondent simply informed its employees-without threats or promises of benefits-that it was opposed to the unioniza- tion of the Los Angeles facility. There is no evidence that Respondent committed unfair labor practices designed to co- erce its employees from voting for the Union. Nor is there evidence that when the Union eventually won the election that Respondent did not honor its statutory obligation and recognize the Union as the employees' exclusive representa- tive and bargain in good faith with the Union. In short, the nature of Respondent's opposition to the Union does not indicate that Respondent was of a state of mind to perform such an extreme act as terminating 14 employees because the employees' had supported the Union. Moreover, it is too speculative to conclude that Respondent believed that the warehousemen were the employees who had supported the Union rather than the other voting unit employees-clerical delivery, and merchandising em- ployees-whom the Respondent, rather than lay off, transferred to the new facility. I realize that the preelection union authorization cards signed by the employees indicate that the warehousemen were the principal union adherents, but other than these cards, there is not an iota of evidence to establish circumstances from which it can be inferred that Respondent believed that the warehousemen were the ones that had supported the Union. In this regard, the sole evi- dence of the employees' union activities and of Respondent's knowledge of such activities or sentiments is the fact that warehousemen Cobb served as the Union's observer at the representation election and that 30 employees signed union cards, most of which were signed by the employees at a meeting held at the Union's office and June 26, 1973. Other than its knowledge that Cobb was a zealous union supporter, Respondent, on this record, had no knowledge of the union activities or sentiments of the other employees it selected for layoff. Nor does the evidence demonstrate that in selecting any one of the employees for layoff that Respondent was moti- vated by the employees' union sentiments. The selection for the layoff, as described above, was based upon an objective criteria, seniority within classification. There is no indication that in using this method, Respondent deviated from normal 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practice or that its use was unreasonable . Moreover, as de- scribed above, there is a lack of evidence that Respondent believed that any of the laid-off employees other than one, Ezra Cobb, were union adherents. And the sole evidence adduced by the General Counsel to demonstrate that Cobb was discriminatorily selected for layoff was the fact that shortly after the representation election, Cobb was given a correctional interview for being absent without permission in June 1973. Assuming that the timing of this belated interview is evidence that Respondent was mad at Cobb because he had supported the Union, it is not sufficient to demonstrate that the method used in selecting Cobb for layoff was discriminatory. 16 In evaluating this portion of the case, I have carefully considered Respondent's treatment of employees Jeffry Kahn, Ramon De La Paz, and C. R. Coldenhoff, which the General Counsel urges indicates Respondent's discrimina- tory motivation. Kahn, as described earlier, was eligible for and applied for employment at the new warehouse in January 1974, yet was not offered employment there until April 1, 1974, despite the fact that there was a job for him as early as February 1974. Respondent's failure to promptly offer Kahn a job at the new warehouse when an opening occurred is peculiar. Yet the lack of evidence that Kahn engaged in any union activity, other than sign a union card, or that Respond- ent believed he was a union adherent, leads me to conclude that the General Counsel has failed to show unlawful dis- crimination in the delay by Respondent in offering Kahn a transfer to the new facility. Regarding De La Paz, the record reveals that on January 21, 1974, he was reclassified from forklift operator to dis- patcher. Likewise, Coldenhoff, on or about the same date, was reclassified from forklift operator to dispatcher and simultaneously transferred to the new warehouse. Respon- dent offered no explanation for its treatment of these two 16 Also, I note that Cobb, as well as several of the other laid-off employees, was recalled by Respondent, apparently as soon as a need developed for his services. 17 I carefully considered the contention of the General Counsel that Olson signed a union card, but the record does not contain such a card warehousemen. But since, in my opinion, the General Coun- sel did not otherwise demonstrate prima facie that Respond- ent violated the Act, Respondent was not obliged to justify this conduct. Moreover, Coldenhoff was apparently a union adherent having signed a union card. Finally, there is no showing that absent their reclassification that either De La Paz or Coldenhoff would have been selected for layoff instead of a prounion employee such as Cobb, who Respondent knew was a union adherent. For all of these reasons, I am unable to conclude that the Respondent's treatment of either De La Paz or Coldenhoff is sufficient to demonstrate that in laying off or failing to transfer other warehousemen that Respond- ent was motivated by the employees' union activities. One last point. In concluding that Respondent lacked knowledge of the union sentiments of 13 of the laid-off em- ployees and that its selection of these employees was not discriminatorily motivated, I have considered that of the 14 employees selected for layoff, all but 2, Olson and Castaneda, had signed union cards." This does not, however, constitute a disproportionate percentage of union adherents be- cause the record establishes that at the time of the layoffs-December 27 and-January 25, 1974-27 of the 33 employees employed then at the Los Angeles warehouse had signed union cards. In other words, about 81 percent of em- ployees remaining in the bargaining unit during the period of the layoff and 85 percent of the employees selected for layoff had signed union cards. Clearly, a disproportionate number of card signers were not selected for layoff. In any event, assuming there was a telling percentage of union card signers selected, it would not support a finding of discriminatory motivation whereas in the instant case such evidence is not supported by other indicia of unlawful discrimination. In view of the foregoing, I conclude that the General Coun- sel has not proven by a preponderance of the evidence that Respondent, by laying off, failing to recall, or by failing to transfer the employees named in the complaint, has violated Section 8(a)(3) and (1) of the Act. Accordingly, I shall recom- mend that this portion of the consolidated complaint be dis- missed. [Recommended Order for dismissal omitted from publication.]