Montgomery Ward & Co., Inc.

104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Montgomery Ward & Co, Incorporated and Chauf- 2 Substitute the attached notice for that of the feurs, Teamsters, Warehousemen and Helpers Lo- Administrative Law Judge cal Union No 144, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America Case 25-CA-7077 May 25, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On January 15, 1976, Administrative Law Judge Walter H Maloney, Jr, issued the attached Decision in this proceeding Thereafter, Respondent filed ex- ceptions and a supporting brief, and General Coun- sel filed a 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 2 as modified herein ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that the Respondent, Mont- gomery Ward & Co, Incorporated, Terre Haute, In- diana, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, as so modified 1 Substitute the following for paragraph 1(c) "(c) Granting benefits to employees to dissuade them from engaging in union activities " i We do not adopt the Administrative Law Judge s finding that Respon dent violated Sec 8(a)(1) by soliciting and adjusting grievances The record does not support the Administrative Law Judge's finding that Supervisor Shroeder called Supp into his office and asked him what his complaint was Instead, it is clear that the conversation was initiated by Supp who in formed Shroeder that he could not support himself on his earnings We do however, agree with the Administrative Law Judge that the subsequent granting of benefits to Supp, a union adherent, was in violation of Sec 8(a)(1) Accordingly, we modify Conclusion of Law 4 to reflect the fore going 2 Our adoption of the Administrative Law Judge s recommended Order which includes broad injunctive language is based on the violations found in this case, and we do not rely on any other proceedings involving the Respondent Springfield Dodge Inc 218 NLRB 1429 fn 2 (1975) APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which we were found to have com- mitted certain unfair labor practices, we have been ordered to post this notice and abide by it WE WILL NOT interrogate employees concern- ing their union activities or the union activities of other employees WE WILL NOT engage in surveillance of the union activities of our employees and WE WILL NOT request employees to engage in the surveil- lance of union activities of other employees WE WILL NOT grant benefits in order to dis- suade employees from engaging in union activi- ties WE WILL NOT threaten employees with loss of benefits in order to discourage them from en- gaging in union activities WE WILL NOT discharge or otherwise discrimi- nate against employees in their hire or tenure in order to discourage their support of and activi- ties on behalf of Chauffeurs, Teamsters, Ware- housemen, and Helpers Local Union No 144, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, or any labor organization WE WILL NOT by any means or in any manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed to them by Sec- tion 7 of the National Labor Relations Act These rights include the right to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for their mutual aid and protection WE WILL offer full and immediate reinstate- ment to Albert W Supp to his former position or, if such position no longer exists, to a substan- tially equivalent position, and WE WILL make him whole for any loss of pay which he has suffered by reason of the discrimination practiced against him, with interest thereon computed at 6 percent per annum MONTGOMERY WARD & CO, INCORPORATED 224 NLRB No 12 MONTGOMERY WARD & CO 105 DECISION FINDINGS OF FACT STATEMENT OF THE CASE WALTER H MALONEY, JR, Administrative Law Judge This case came on for hearing before me at Terre Haute, Indiana, upon a complaint,' amended at the hearing, is- sued by the Regional Director of Region 25, which alleges that Respondent Montgomery Ward & Co, Incorporated,2 violated Section 8(a)(1) and (3) of the Act, as amended Specifically, the amended complaint alleges that Respon- dent unlawfully interrogated employees concerning their union activities and the union activities of other employ- ees, requested employees to spy on the union activities of other employees, solicited and adjusted grievances in order to dissuade employees from supporting the Union, threat- ened employees with loss of benefits and adverse changes in working conditions if the Union were successful, and discharged Albert W Supp because he supported the Union's organizing drive Respondent denies many of the independent violations of Section 8(a)(1) which were al- leged and asserts that it discharged Supp on May 7, 1975, because he violated a no-solicitation rule Upon these con- tentions, the issues herein were joined 3 I THE UNFAIR LABOR PRACTICES ALLEGED A Background and 8(a)(1) Conduct Respondent operates a large department store near the center of the city of Terre Haute where it employs nearly 200 persons On the same premises but in a separate build- ing it operates an automotive service center where it em- ploys about 20 salesmen, repairmen, tire changers, and gas- oline station attendants The Union began an organizing drive on the entire establishment in March 1975 On March 31, it filed a representation petition seeking an elec- tion in a broad unit composed of all warehousemen, sales personnel, automotive service center employees, and cafe- teria workers, with the usual exclusions (Case 25-RC- 5946) The case was set for hearing on April 16 and was rescheduled for May 2 The hearing did not take place The i The principal formal papers docketed herein are as follows Charge herein filed against Respondent by Chauffeurs, Teamsters, Warehousemen and Helpers Local Union No 144, affiliated with International Brother hood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America (herein called Union), on May 12 1975 complaint issued on June 26, 1975 Respondent's answer filed on July 11, 1975, hearing held at Terre Haute Indiana, on August 25 and 26, 1975, briefs filed by the General Counsel and Respondent with me on September 29, 1975 2 Respondent admits, and I find, that it is an Illinois corporation which maintains a multistate chain of retail department stores, including a store and automotive service center located at Terre Haute, Indiana During the preceding 12 months, a representative period Respondent sold and distrib- uted products valued in excess of $500,000, and purchased at its Terre Haute Indiana store directly from points and places located outside the State of Indiana goods and merchandise valued in excess of $50,000 Ac cordingly it is an employer engaged in commerce within the meaning of Sec 2(2), (6), and (7) of the Act The Union is a labor organization within the meaning of Sec 2(5) of the Act 3 Certain errors in the transcript have been noted and corrected petition in Case 25-RC-5946 was withdrawn on May 6 because another petition had been filed by the Union on May 5, seeking an election in a unit limited to automotive service center employees (Case 25-RC-5966) An election in the smaller unit was directed on May 28 and was held on July 30 The Union won the election by a vote of 13 to 5 and was certified on August 7, 1975 Among the Union efforts directed toward organizing the store were two meetings conducted at the Teamsters hall or office which took place on March 24 and April 2 Between these two meetings, Union Assistant Business Agents Har- ry V Rogers and Todd Jorritsma personally carried a let- ter, dated March 28 and signed by Union President George L Hanks, to Store Manager Jon C Maston In that letter, the Union claimed majority status and demanded recogni- tion Rogers and Jorritsma left the letter with Maston's secretary Maston did not reply to the letter directly, but on April 7 issued a letter to all of Montgomery Ward's Terre Haute employees in which he acknowledged receipt of Hanks' letter, informed employees that Respondent would not grant the requested recognition, and indicated his feel- ing that the best way to determine a question of representa- tion was to have an election He also noted that a represen- tation petition had been filed His letter contained the comment In general, I know the union is not going to be able to help our employees To illustrate this point, I will be speaking to you as time goes along It is my sincere hope you will feel free to ask me any and all questions you may have My intent is and will be to provide total and complete information in this matter During the period of time when it was engaged in orga- nizing the main portion of the Montgomery Ward store, the Union obtained designation cards from various em- ployee supporters However, in the automotive service cen- ter, which became the focal point of organizational interest after the Union withdrew its first petition, Albert W Supp, a partsman, was the principal organizer During the period running from mid-March until May 7, when he was termi- nated, Supp obtained about nine signed designation cards from service center employees Among his other activities Supp attended the two union meetings held on March 24 and April 2 He attended the first meeting with fellow em- ployee George Hamm Just before the second meeting, Ser- vice Center Manager Joseph Schroeder asked Supp if he was going to the "big meeting," referring to a union meet- ing scheduled to take place that evening Supp replied that he did not know but that he was thinking about attending Schroeder also asked Supp if he had attended the first meeting on March 24 Supp replied that he and Hamm had attended that meeting Schroeder proceeded to ask Supp what he thought about the meeting Supp gave him an eva- sive and generally negative response Schroeder then asked him to vote against the Union if the question came to a vote He also told Supp that he would like it if he and Hamm went to the April 2 meeting and reported back to him what was going on 4 On the following day, Schroeder Schroeder admits making this request to Supp 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD approached Supp in the partsroom area and asked him how the meeting went He also asked him if Hamm had attended, to which question Supp replied that he had not Supp reported to Schroeder generally what had transpired at the April 2 meeting At or about the same time, Schroeder also inquired of Hamm concerning the organizing campaign 5 On the day following the March 24 meeting, Schroeder approached Hamm and asked him what happened at the meeting The two proceeded to discuss the various facets of the organiz- ing drive About a week or so later, Hamm was in the office of Service Manager Sam Potts on a business errand At this time, Potts asked Hamm how he felt about the Union and told Hamm that if the Union came in, employ- ees would probably lose a lot of benefits, including their breaktime Sometime in March, Potts had also told Supp that, if the Union came in, breaktime and lunchtime would be limited and the taking of such breaks would be closely regimented At that time, the Company followed a flexible policy in regard to the taking of breaks On or about April 7, Schroeder spoke at some length with Supp concerning Supp's dissatisfaction with his em- ployment He asked Supp what his problem was, and Supp replied that his main problem was that he was only bring- ing home $78 per week a'id was unable to live on that salary They discussed the possibility of augmenting Supp's wages with an incentive program, in accordance with which Supp, as a partsman, would receive a stated bonus for each of several enumerated items which he sold Supp agreed to this arrangement, so Schroeder obtained permis- sion from Maston to put it into effect On April 14, a tem- porary incentive for Supp, renewable every 30 days until canceled, was put into effect 6 B The Discharge of Albert Supp When Maston learned that an organizing drive was in progress, he directed his secretary to Xerox a copy of a rule respecting solicitation which could be found in the Company's personnel manual and to post a copy on bulle- tin boards in the store and in the automotive service center There is no indication that, until this time, any effort was made to bring the existence of this rule to the attention of any employee or to enforce it in any way In pertinent part, the rule provides Employees may not distribute union literature or soli- cit membership in unions, or fraternal, religious, social or political organizations on Company time, or while employees to whom literature is being distributed, or whose membership is being solicited, are on Company time Company time is that time which the employee is scheduled to be on duty and for which the employee is being paid, excluding rest periods, lunch periods, and time before and after the employee's working day 5 Schroeder denies questioning Hamm I credit Schroeder 6 Examples of the incentive payments for Supp were pair of shocks regu- lar price-25 cents, pair of shocks sale price-15 cents wheel align- ment-40 cents complete tune up regular price-$] tire sale over $50-$1 25 tire sale over $150-$3 50 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 operations of the Company's busi- ness Meetings or speeches are not to be permitted, solicitation which results in disturbing or interfering with the work or function of any employees or depart- ment is forbidden, solicitation which is detrimental to maintaining the premises in a clean and attractive condition is forbidden * Solicitations for charity drives and fund raising cam- paigns are to follow the guidelines for solicitations as outlined above The Company generally supports one all-out community charity drive Prior approval is re- quired for any additional drives held on Company property Such approval is to be made by the Retail or Catalog Store Manager, Catalog House Personnel Manager, Regional Personnel Director or Corporate Personnel Director There is considerable dispute as to when Maston's secre- tary copied and posted this notice on employee bulletin boards Maston testified that he directed the posting of the notice respecting no solicitation after learning that a sales- man, John Ellington, was distributing cards in the main part of the store According to Maston's own testimony, Schroeder reported learning of Ellington's involvement and of the existence of union cards in the store and asked Maston to put an end to union solicitation since he felt it was a disruptive factor among employees Maston called Ellington in to the office to warn him not to distribute cards When Ellington arrived at the office, he gave Mas- ton a week's notice that he was quitting Maston said, "Let's make it today," and discharged Ellington on the spot Thereafter, a notice containing the above-quoted rule was allegedly posted I credit testimony to the effect that it was posted sometime in the spring of 1975 I also credit the testimony of Hamm and Supp that they did not know of the existence of such rule or see the posting of the notice until after Supp was discharged Supp continued soliciting and obtaining signatures on designation cards at the service center throughout April and elsewhere in early May One of the persons Supp talked to was a gasoline service station attendant named Walter Sims Sometime in March, Sims had signed a union designation card at Supp's request On the day Supp was discharged, he approached Sims, who was standing on the sales floor of the service center during the early morning hours Sims was not on break at the time but was not occu- pied with any particular task He was standing about wait- ing for potential customers to drive into the service station for gasoline Supp asked Sims to obtain signed union cards from a couple of gas station attendants so that he would have a majority of the service center signed up Sims de- clined ' and reported the request by Supp to Schroeder, Sims testified that when Supp approached him he not only declined the request to speak to other employees on behalf of the Union but lectured Supp about not engaging in union activities on company time This portion MONTGOMERY WARD & CO 107 who immediately relayed the information to Operating Manager Robert Blanton Blanton in turn told Maston, who called Sims into his office and requested Sims to write out in longhand the substance of his conversation with Supp Sims did so Supp was then summoned to Blanton's office by Schroe- der On the way to Blanton's office from the service center, Supp asked Schroeder what the requested interview was all about and Schroeder replied that he thought it had to do with the Union While they were waiting in Blanton's of- fice, Schroeder asked Supp what problems he was encoun- tering in the shop Supp replied that there was dangerous equipment, including three tire changers on a hoist, and told Schroeder that if the defects in this equipment were not corrected, someone would get killed Finally, Supp was called into Maston's office in the com- pany of Blanton Maston greeted him with the phrase "You know your job is in jeopardy " Supp made no reply Maston went on to inquire of Supp as to why he was so open about the Union in light of company policy, telling Supp that he had placed his job in jeopardy and could be fired for being so open about the Union Supp replied that he could not make ends meet on what he was earning at Montgomery Ward Supp also discussed with Maston a grievance relating to a defective tire-changing machine, which machine Supp felt was a danger to the life or limb of employees assigned to use it In the discussion which en- sued, Maston reiterated the statement he had made in his April 7 letter, namely that he felt that the Company could do more for the employees than the Union could Interest- ingly enough, during no conversation with Supp on the morning or early afternoon of May 7 did Maston or any one else in supervision mention to Supp the name of Sims as the person who had complained of on-the-job solicita- tion by Supp, nor was mention made of the conversation that morning between Sims and Supp as the incident which triggered the interview Maston told Supp to wait outside for a few minutes, so Supp left his office, during which period Maston pondered Supp's fate When Supp returned, Maston told Supp that he had put him (Marton) in a tight position because he had been so open about his union activities, so, in light of that fact, he would have to effectuate company policy and dis- charge him He told Blanton to accompany Supp to the service center Supp went to the service center, picked up his belongings, got his final check, and left II ANALYSIS AND CONCLUSIONS A Independent Violations of Section 8(a)(1) I conclude that the following statements made by Respondent's supervisors, some of which are essentially admitted by Respondent, constitute a violation of Section 8(a)(1) of the Act 1 Schroeder's questions to Supp on or about April 2 as of the testimony of an employee who was recently put in line for promotion is argumentative and suspect and is contradicted by Supp I discredit Sims on this point to whether he had attended the March 24 union meeting, what he thought of the March 24 meeting, and whether he was going to the "big meeting" that evening 2 Schroeder's request to Supp that he report back to him what occurred at the April 2 union meeting 3 Schroeder's question to Supp the following day in- quiring into what transpired at the April 2 union meeting, and his question as to whether employee Hamm had at- tended that meeting 4 Potts' statement in late March or early April to Hamm that if the Union came in, employees would lose benefits, including breaktime, and his interrogation of Hamm as to how Hamm felt about the Union 5 Potts' statement in March to Supp that, if the Union came in, the Company would stop following its flexible policy regarding lunch and breaktimes, and would strictly limit and regiment employees in taking these breaks 6 The Respondent's effort to solicit and adjust Supp's grievance concerning insufficient earnings On the same day that Maston distributed a letter to employees announc- ing Respondent's refusal to recognize the Union and its opposition to the unionization of the store, Respondent, acting through Schroeder, called known union activist Supp into his office in an obvious attempt to dissuade him from promoting the Union cause any further Schroeder asked Supp what his basic complaint was and received a clear answer, whereupon he undertook to provide some measure of improvement in Supp's earnings Schroeder sought and obtained from the store manager permission to institute an incentive program based on sales and made applicable only to Supp, which would have the effect of slightly augmenting Supp's basic earnings The program was put into effect in mid-April when the first representa- tion petition filed by the Union was still pending The in- centive program was not only a promise of benefit, it was a grant of benefit to an in-house union organizer, during the pendency of a petition, designed to alleviate a griev- ance which prompted his union activities in the first place The fact that this effort on Respondent's part was not suc- cessful, as discussed infra, in putting an end to Supp's union enthusiasm in no way detracts from the illegality of the act NLRB v Exchange Parts Co, 375 U S 504 (1964) B The Discharge of Albert W Supp By all accounts , Supp satisfactorily performed his as- signed duties during the year in which he was employed at the automotive service center He started to work as a tire changer and was later assigned to be a partsman During this period of time, he regularly received good marks from his supervisors , with the sole possible exception of having an untidy uniform , hardly a matter of major concern for persons assigned to grimy work like tire changing During the year of his employment, Supp received raises from his hiring-in rate of $2 25 an hour to $2 75 an hour, the wage he received when he was fired Respondent's effort to soli- cit and adjust a grievance relating to inadequate compen- sation, noted above, while illegal in its concept and execu- tion, demonstrates on its behalf not only a desire to chill an organizing drive but at the same time a recognition of 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Supp's value as an employee However, when the carrot did not work, the stick was applied Supp was the leading union organizer in the automotive service center A few days before Supp's discharge, when the Union withdrew its petition for a storewide unit and filed a new petition limited to the automotive service cen- ter, this area became the focal point of the struggle and a fortiori Supp became the leading union protagonist To as- sist it in eliminating a protagonist who could not be dealt with effectively in other ways, Respondent fell back on a rule contained in its personnel manual forbidding employ- ees to solicit for union or other purposes on working time, with certain noted exceptions The General Counsel does not contend that the rule or rules, as set forth above, are per se illegal Rather, he devot- ed much argument and considerable evidence to the con- tention that the rule was discriminatorily promulgated and enforced Much of Respondent's testimony and argument were designed to counter this contention In looking at the facts and circumstances surrounding Respondent's reliance upon this rule, the first question which must be addressed is whether the rule was actually promulgated at all in any meaningful sense so that employees could fairly be charged with knowing about it and abiding by it For a number of years, the only copy of the rule which existed at the Terre Haute store was one which could be found only in the recesses of a personnel manual kept in the store manager's office During most of Supp's tenure as an employee, the existence of the rule was a well-kept secret It was not post- ed, it was not found in any employee handbook, and it was not orally brought to his attention or that of any other employee who testified at the hearing Maston admits one element of discriminatory promulgation of a no-solicita- tion rule, namely that it was dusted off and brought to light at Schroeder's request, after Maston discharged union ac- tivist Ellington, and in a direct cause-and-effect relation- ship to a drive which was then gaining momentum 8 While Maston responded to the Union's demand for recognition by distributing a letter to all employees on the subject of unionization, at no time did he make any other effort or use any other means besides a routine notice posting on the bulletin board to bring the existence of the newly promul- gated rule to the attention of anyone It is no surprise that Supp, Hamm, and possibly many others did not see it During the period of nonapplication and nondisclosure of this rule, a loose and informal practice or rule of the shop had grown up which was totally contrary to the provi- sions of the rule and which in fact endured after copies of the rule were Xeroxed and posted Supervisors and nonsu- pervisory employees routinely solicited employees on the job for a whole host of purposes, ranging from United Fund to the sale of United States Series E bonds to the West Vigo school carnival Respondent admits that solici- tations of employees for the United Fund and for US Savings bonds were made under company sponsorship Other examples of solicitation on company time are evi- dent from the record An employee collected money on worktime for flowers for the mother of James Smith, a 8 See State Chemical Company 166 NLRB 455 (1967) Hosiery Corpora Lion of America, 175 NLRB 180 (1969) store employee, who was hospitalized Another solicited money when salesman James Rusk went to the hospital with a heart attack Schroeder sold peanuts to employees on worktime for the benefit of his daughter's Girl Scout troop After the posting of the notice, solicitations were undertaken by a supervisor and two employees for going- away presents for six employees who were retiring in May 1975 Potts sold raffle tickets for the benefit of the West Vigo carnival sponsored by a school which one of his chil- dren attended I do not regard these incidents as isolated but as part of a practice or pattern of behavior which was often made evident to employees such as Supp, and which condoned on-the-job solicitations, both for in-house chari- ties and for the benefit of organizations and efforts which had nothing to do with Montgomery Ward & Co As the rule in question was promulgated for the admitted purpose of limiting union organizational activity by an employer who gave repeated evidence of union animus by the com- mission of collateral unfair labor practices, and as the rule was applied disparately to interfere only with union organi- zational activities, I conclude that the Respondent may not rely on it as a defense to discharging Supp There is some testimony in the record that Supp was aware of company policy and that the discharge was taken to effectuate company policy, without specific reference to which policy that might be The Company had a policy of resisting union organization Supp was aware of such a policy from Maston's April 7 letter and from the interroga- tions, grants of benefit, and requested surveillance of union meetings which he had experienced in the 2 months prior to his discharge 9 I construe certain remarks attributed to Supp regarding an awareness of the Respondent's "policy" as meaning he was aware that the Respondent disliked the organization of its stores, not that he was aware of the existence of any no-solicitation rule, valid or otherwise The Union's instruction to Supp not to solicit on company time was cautionary advice of general application and was by no means an instruction that a valid no-solicitation rule was there and then in full force and effect at Respondent's Terre Haute store Indeed, at the beginning of the organi- zational drive when Supp commenced his union activities, the rule in question had not as yet been promulgated Any reliance by Respondent upon the rule as a basis for discharging Supp is not only legally unfounded but is also pretextual It is clear from the context of the discharge that Respondent was not moving to enforce or vindicate its rule when it terminated Supp Rather, it was taking steps to 9 Indeed this case is not the first instance in which Respondent s policy of resisting organizational campaigns has extended to the commission of un- fair labor practices In the past 10 years the Board has found that this Respondent has committed unfair labor practices and has issued cease-and- desist orders against it in some 13 reported cases Montgomery Ward & Co Inc 160 NLRB 1729 enfd in part 385 F 2d 760 (C A 8 1967) Blooming- ton Minn 8(a)(1) (3) and (5) 172 NLRB 294 enfd 399 F 2d 409 (C A 7 1968) Chicago Ill 8(a)(l) and (5) 165 NLRB 652 (1967) Pasco Kennew- ick and Richland Wash 8(a)(1) and (5), 166 NLRB 764 (1967) Pittsburg Calif 8(a)(1) and (5) 179 NLRB 686 (1969) Yakima Wash 8(a)(1) (3) and (4) 187 NLRB 956 (1971) Longview Wash 8(a)(1) 186 NLRB 1022 (1970) Canton Ohio 8(a)(1) and (3) 189 NLRB 80 (1971) Poplar Bluff Mo 8(a)(1) 197 NLRB 519 (1972) Mansfield Ohio 8(a)(1) and (3) 195 NLRB 725 (1972) Menands N Y 8(a)(1) and (3) 198 NLRB 52 (1972) Cheyenne Wyo 8(a)(1) and (3) 202 NLRB 978 (1973) Daly City Calif 8(a)(I) and (3) 210 NLRB 717 (1974) Marshalltown Iowa 8(a)(1) and (5) MONTGOMERY WARD & CO 109 eliminate the prime organizer in a portion of its store which had just become the subject of the newly filed representa- tion petition Supp's statement to Sims, requesting him to get other gas station employees to sign, was a trivial remark made in passing to an employee who was standing idle at the time it was made Any interruption of the work of either Sims or Supp by this statement was miniscule When Supp was brought to Maston's office for his terminal inter- views, no mention whatsoever was made to him of a con- versation with Sims or of Sims' report, so no response or explanation by Supp as to his side of Sims' story was possi- ble before the rule was assertedly invoked to bring about Supp's discharge Maston's statements to Supp during these conversations indicated that Supp was an embarass- ment to him, possibly in the eyes of higher management, because Supp had been so open about promoting the union cause Indeed, the even-handed enforcement of a no-solici- tation rule leaves ample room for an employee to be open and aboveboard about seeking union memberships on company property, so long as he does so at prescribed times and places It was Supp's openness, taken together with the fact that Respondent found itself with the possi- bility of facing an election in a limited unit and Supp's lack of an acceptable response to the incentive program, which made his presence no longer tolerable Accordingly, I find and conclude that by discharging Albert W Supp on May 7, 1975, Respondent herein violated Section 8(a)(1) and (3) of the Act Upon the foregoing findings of fact, and upon the entire record herein considered as a whole, I make the following CONCLUSIONS OF LAW 1 Respondent Montgomery Ward & Co, Incorporated, is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 Chauffeurs, Teamsters, Warehousemen, and Helpers Local Union No 144, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen, and Help- ers of America, is a labor organization within the meaning of Section 2(5) of the Act 3 By discharging Albert W Supp because he engaged in union activities, as found above, Respondent herein violat- ed Section 8(a)(3) of the Act 4 By the acts and conduct set forth in Conclusions of Law 3, by interrogating employees concerning their union activities and the union activities of other employees, by requesting employees to engage in surveillance of union meetings, by soliciting and adjusting grievances in order to dissuade employees from engaging in union activities, and by threatening employees with the loss of benefits in the event of unionization, Respondent herein violated Section 8(a)(1) of the Act 5 The aforesaid unfair labor practices have a close, inti- mate, and substantial effect on interstate commerce, within the meaning of Section 2(6) and (7) of the Act REMEDY Having found that Respondent has engaged in certain unfair labor practices, I will recommend that it be ordered to cease and desist therefrom, and that it be required to take certain affirmative actions designed to effectuate the purposes and policies of the Act As noted above in foot- note 9, this Respondent has repeatedly been found guilty and has frequently been ordered to cease and desist from engaging in unfair labor practices which have occurred in stores located throughout the United States This case is but one more instance in which it has flouted the Act after having been placed under specific directives by this Agen- cy not to do so For this reason, and also because the viola- tions found herein include a discriminatory discharge and go to the very heart of the Act, this case warrants the rec- ommendation and adoption of a broad 8(a)(1) order J C Penney Co, Inc (Store #1814), 172 NLRB 1279, fn 1 (1968), Adam & Eve Cosmetics, Inc, 218 NLRB 1317 (1975) The recommended order will also provide that Re- spondent be required to offer to Albert W Supp reinstate- ment to his former or substantially equivalent position and to make him whole for any loss of earnings in accordance with the Woolworth formula,10 with interest thereon com- puted at 6 percent per annum I will also recommend that Respondent be ordered to post the usual notice notifying employees of their rights and of the results in this case Upon the foregoing findings of fact, conclusions of law, and pursuant to Section 10(c) of the Act, I make the fol- lowing recommended ORDER 11 The Respondent, Montgomery Ward & Co, Incorporat- ed, and its directors, officers, supervisors, agents, succes- sors, and assigns, shall I Cease and desist from (a) Interrogating employees concerning their union ac- tivities or the union activities of other employees (b) Engaging in surveillance of union activities of its em- ployees and requesting employees to assist it in engaging in the surveillance of union activities of other employees (c) Soliciting and adjusting grievances and granting ben- efits to employees to dissuade them from engaging in union activities (d) Threatening employees with loss of benefits in the event the store becomes unionized (e) Discouraging membership in, or activities on behalf of, Chauffeurs, Teamsters, Warehousemen, and Helpers Local Union No 144, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen, and Help- ers of America, or any other labor organization, by dis- charging or by discriminating against employees in their hire or tenure (f) By any means or in any manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed to them by Section 7 of the Act 10 F W Woolworth Company 90 NLRB 289 (1950) 11 In the event no exceptions are filed as provided by Sec 10246 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 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2 Take the following affirmative action designed to ef- fectuate the purposes and policies of the Act (a) Offer to Albert W Supp immediate and full rein- statement to his former position or, if such position no longer exists, to substantially equivalent employment, with- out prejudice to his seniority or other rights previously en- joyed, and make him whole for any loss of pay suffered by him by reason of the discrimination found, in the manner described above in the section entitled "Remedy " (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll and other records necessary to analyze the amount of backpay due under the terms of this recommended Order (c) Post at Respondent's place of business at Terre Haute, Indiana, copies of the attached notice marked "Ap- pendix " 12 Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by a representative of Respondent, shall be posted immedi- ately upon receipt thereof, and be maintained by Respon- dent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material (d) Notify the Regional Director for Region 25, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith 12 In the event that this Order is enforced by a Judgment of the United States Court of Appeals the words in the notice reading `Posted by Order of the National Labor Relations Board shall read ' Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board