Montgomery Ward & Co., Inc.

112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Montgomery Ward & Co., Incorporated and Ware- house, Mail Order, Office, Technical and Profes- sional Employees Union, Local No. 743, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca. Cases 13-CA-14534 and 13-RC-13728 June 24, 1976 DECISION AND ORDER By MEMBERS JENKINS, PENELLO, AND WALTHER On April 9, 1976, Administrative Law Judge Thomas R. Wilks issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Coun- sel filed an answering 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 Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Montgomery Ward & Co., Incorporated, Posen, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. ' The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board 's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings DECISION STATEMENT OF THE CASE THOMAS R. WILKS, Administrative Law Judge: A hearing in this consolidated proceeding was held on February 9, 10, and 11, 1976, at Chicago, Illinois, based on a charge filed against Montgomery Ward & Co., Incorporated, on July 23, 1975, by Warehouse, Mail Order, Office, Techni- cal and Professional Employees Union, Local No. 743, af- filiated with The International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, here- in called the Union, and a complaint issued by the acting Regional Director on October 30, 1975, alleging that the Respondent violated Section 8(a)(1) of the National Labor Relations Act, as amended, by soliciting and remedying employee grievances and by promising and granting bene- fits in conditions of employment and by threatening to re- frain from instituting a scheduled wage increase in order to induce employees to refrain from engaging in or support- ing the Union.' Pursuant to Stipulation for Certification Upon Consent Election executed in the representation case by the Re- spondent and the Union, and approved by the Regional Director for Region 13 on June 26, 1975, an election was conducted among the Respondent's employees on July 25, 1975. The unit in which the election was conducted consist- ed of: "All service, parts, clerical, sales, maintenance, ship- ping and receiving employees employed by the employer at its Posen, Illinois, service facility; excluding professional employees, confidential employees, guards and supervisors as defined in the Act." The tally disclosed that, of 102 valid votes counted, 49 votes were cast for the Petitioner, 53 were cast against it, and 5 ballots were challenged. On Au- gust 1, 1975, the Union filed timely objections to conduct affecting the results of the election with the Regional Di- rector. The Respondent contends that the Union failed to serve a copy of the objections upon the Respondent on or before August 1. On October 31, 1975, a report on objec- tions and challenges and order consolidating cases and no- tice of hearing on objections issued That report disposed of the challenges by finding, pursuant to a stipulation of the parties, that one challenged voter was ineligible to vote and that the remaining challenges were no longer determi- native of the results of the election. Because of the identity of issues in the objections and the unfair labor practices alleged the Regional Director ordered the two cases con- solidated for hearing before an Administrative Law Judge. On the entire record in this case, including my observa- tion of the witnesses and after due consideration of the briefs submitted by Respondent, General Counsel, and the Union I make the following. 1 The complaint was amended at the hearing to allege as additional agents of the Respondent Patrick A Favuzzo, assistant service manager, Donald Harvey, service manager, and Jack B Brousard assistant labor relations director Their status is not in dispute, and I find that at all times material herein they acted as agents of Respondent within the meaning of Sec 2(13) and (11) of the Act 2 On March 15, 1976, the General Counsel moved to reopen the record for the purpose of consolidating the instant case with a proceeding in Case 13-CA-15118 wherein complaint had issued on March 9, 1976 The latter case involved the Respondent and similar allegations of 8(a)(I) conduct but at a different unit and different geographical location No indication was given as to the relevance of evidence adduced in the instant proceeding to Case 13-CA-15118 On March 24, 1976, 1 denied the motion on the ground that sufficient justifiable reason was not given to delay issuance of a deci- sion in this matter 225 NLRB No. 15 MONTGOMERY WARD & CO, INCORPORATED 113 FINDINGS OF FACT Ing room. The choice of Harvey's office for these preelec- tion meetings was made by Brousard Brousard, an attor- I. THE BUSINESS OF THE RESPONDENT ney, testified that he is responsible for labor relations for Respondent is an Illinois corporation which maintains its principal office and place of business at Montgomery Ward Plaza, Chicago, Illinois. It is engaged in the retail sale of merchandise and maintains a service center locat- ed at 14736 South Campbell, Posen, Illinois (herein called Posen service center). During the 12 months preceding the issuance of complaint herein, a representative period, Re- spondent sold and distributed merchandise in a gross value which exceeded $500,000, and, during the same period of time, purchased and received goods and materials valued in excess of $50,000 from outside the State of Illinois. Re- spondent is an employer engaged in commerce within the meaning of the Act and it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES In January 1975, the Respondent transferred its Gary, Indiana, service center to Posen, Illinois. The Posen service center employs technicians who make service calls in cus- tomers' homes pursuant to repair work guaranteed under appliance warranties as well as other repair work. The out- side technicians comprise various departments depending upon the type of product that is serviced; i.e., television, washer-dryers, lawnmowers, tractors, etc. Also employed at the service center are technicians who perform work on appliances which are brought in for service. In addition to these outside and inside technicians the service center also employs telephone solicitors for the purpose of contacting customers to induce them to purchase service contracts. Additionally, various clerical and data processing employ- ees are employed at the center The manager of the service center is Ronald Harvey who is assisted by Patrick Favuz- zo, the assistant manager. Respondent is alleged to have violated the Act and en- gaged in election interference by the conduct of its assis- tant labor relations manager, Jack Brousard, and Service Manager Harvey in the manner in which these two individ- uals conducted a series of employees' meetings on July 21, 22, 23, the Monday, Tuesday, and Wednesday preceding the Friday election of July 25, 1975. On those 3 days a series of about 12 meetings of groups of employees ranging in numbers from 6 to 12 were held in Harvey's office. The employees were invited by Assistant Manager Favuzzo, and the meetings were presided over by Brousard after a few introductory remarks by Harvey. Depending upon the subject matter raised, Harvey participated to some extent in the meetings. The meetings were scheduled for periods of time not to exceed 90 minutes and generally averaged about an hour. Although the Respondent conducts regular, weekly meetings among its technicians, such meetings are normally conducted in the combination lunchroom-train- the Respondent and that his duties consist of representing the Respondent in labor negotiations as well as grievance and arbitration cases arising from contracts which have been negotiated. Also part of his duties are those of "counter-organization activities of the company." In fulfill- ing those latter duties Brousard has found that the smaller group meetings are preferable because they are "more comfortable in getting across what I want," and that em- ployees are "more responsive." Upon cross-examination he testified that his preference for smaller groups is based in part upon the fact that employees asked more questions in smaller groups. In selecting Harvey's office Brousard also concluded that the lunchroom-training room would be subject to interruptions in view of the presence of vending machines in the room and the disinclination of the employ- er to tell its employees to refrain from using the area during that period of time. The election was held in the training- lunchroom. Harvey's office which had been utilized in the past for employee discipline and for ratings of employees was never used for the- purpose of conducting meetings. Furthermore, the regular meetings conducted in the lunch- room-training room were conducted for the purpose of making announcements to employees with respect to changes in employer procedures and company policy. There is no evidence that in either private meetings or in the general meetings conducted of the technicians, occa- sionally attended by clericals, that the employer had en- gaged in solicitation of employees' complaints or griev- ances prior to the week of July 21, 1975. As the employees were seated in a circular arrangement around the manager's desk, Harvey commenced each meeting by introducing Brousard who sat to his side. Har- vey described Brousard's position with the company and told them that he was there to answer any questions they may have regarding the upcoming election. What Brous- ard, and on occasion Harvey, stated at those meetings is subject to varying versions, but essentially the General Counsel's witnesses' testimony tracks the account as given by Brousard. Brousard stated that he explained the me- chanics of the election procedure, that he had with him a copy of the notice of election, and he described specifically the voting procedures. Other than a copy of the notice of election he had no prepared text, but he did bring with him material upon which he could take notes as the meeting progressed. The area of greatest factual dispute centers upon the transition from these opening remarks to the phase of the meetings wherein employees raised a series of complaints concerning working conditions. In oral argu- ment and in brief Respondent takes the position that it did not solicit grievances at these meetings, but rather the is- sues that were raised at the meetings had been raised in the Union's campaign propaganda which preceded the meet- ings, and that Brousard was "put on the spot" by union protagonists who came to the meetings for the purpose of specifically raising grievances and complaints. Thus, Har- vey testified that questions from employees "started pop- ping into the conversation." The Respondent introduced into evidence certain union campaign propaganda in sup- 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD port of its argument. Harvey testified that he was familiar with this literature and in possession of it prior to the meet- ings. On cross-examination he conceded that such was clearly impossible because the face of some leaflets indi- cates that they could not have been distributed prior to the meeting. Harvey revealed himself to be completely lacking in candor, not only with respect to his testimony regarding the union literature, but by the evasiveness in which he responded to questions concerning the transition of the meeting from one of exposition of election mechanics to that of a raising of employees' questions and complaints. Brousard testified that after he touched upon the mechan- ics of voting that he told the employees: ". . . I didn't understand why you want a union since you are getting the same thing as the people at Rosemont " The Rosemont service center is what is called a tandem or sister service center at Rosemont, Illinois, which is currently represented by the Union Although Brousard testified that he did not solicit grievances or complaints of employees he conceded that at the beginning of each of his meetings he told em- ployees that: "the meetings were open and I welcome their questions, their observations, their arguments, their con- cerns, anything they wanted to talk about and we got a lot of discussion." A series of witnesses called by the General Counsel testi- fied to essentially the same version with some variation. Thus testified parts clerk Cheryl Duck: "[he said] that he couldn't see how he wanted it [the Union] . . . we had everything that Rosemont had"; TV repairman Henry Till- man: "there must be some reason that we would go to the extent of trying to get a union . . . must be some dissatis- faction in the group since we have the same benefits as Rosemont." Some employees testified to a much more ex- plicit solicitation of employee concern. Inside appliance re- pairman John Ciszon testified that Brousard "asked what kind of beefs" the employees had. Several other employees similarly testified to an explicit solicitation of complaints. Their testimony, however, is extremely vague, cryptic, and bereft of the context of the comments. I therefore conclude that the statement of Brousard which precipitated the dis- cussion of complaints occurred precisely as Brousard had testified; that is, he told them the meeting was wide open, welcomed them to express their concerns, and expressed a wonderment as to what could be gained by union represen- tation. I find the total context of the situation to be nonrhe- torical. It is clear that Brousard did not have a gripe session forced upon him as suggested by Respondent's argument, but rather his opening remarks were calculated to elicit a verbalization of employee grievances which he admitted were known to him to exist prior to the meetings. Brousard's decision to allot 90 minutes to each meeting despite the fact that explaining election mechanics took from 15 minutes to half an hour proved to be quite far- sighted inasmuch as a discussion of employees' complaints filled the greater portions of the meetings thus expanding them to an average of an hour and some beyond that. A wide variety of employees' questions, concerns, and com- plaints were then raised at these meetings following Brousard's opening statement. Both Brousard and Harvey testified that no promises were made to remedy any of the complaints, nor were promises made to institute benefits. However, Brousard took notes as employees registered their complaints and, either he or Harvey, at the very least promised to "look into it," "check it," or "consider it." A very critical element of Brousard's message was that the employees were receiving the same benefits as the Rose- mont service unit which was represented by the same union, and that employees would have nothing to gain from voting for the Union. He stated he was particularly disturbed when the raising of some of the complaints dis- closed that, in some cases, Posen did not have the same benefits as Rosemont. Upon discovering this Brousard tes- tified that he became very upset with Harvey for not advis- ing him beforehand of the differences. Some of the com- plaints registered were as follows: technicians upon being newly hired at Rosemont were issued handtools at the ex- pense of the employer but not at Posen; technicians were being assigned too many service calls and were unable to finish their assigned calls within the normal workday, and, unlike the Rosemont unit, they were required at Posen to contact the customer and reschedule their own calls in- stead of having an office clerical fulfill that function; un- like Rosemont, Posen service technicians were compelled to accept single assignments in high crime areas instead of having a fellow employee accompany them; technicians were not being compensated time and a half for work per- formed after an 8-hour day unless advanced clearance was given which was alleged to be a rarity; the employer did not communicate with its employees and was not interest- ed in its employees' grievances; and, finally, the telephone solicitors complained that they were not receiving the same rate of commission upon selling a service contract as tele- phone solicitors at Posen Finally, a question was raised as to whether the employees at Posen would get their regu- larly scheduled cost-of-living and wage increase. Brousard repeatedly reinforced a statement to the employees that it was the employer's policy to grant them the same benefits as Rosemont and that policy would be followed. It is clear from the record that the employees were informed that the employer would look into its complaints and that the poli- cy of uniformity would be enforced if the Union did not win the election. The logical inference to be made from his remarks was that if the Union lost the election whatever benefits that Rosemont had that Posen did not have would be effectuated at Posen. Thus Brousard testified: "I said that if the union did not get in they would continue to receive the same treatment and benefits as the employees at Rosemont, yes." After each meeting Brousard went over all the com- plaints that were raised and discussed them with Manager Harvey. As Brousard testified on cross-examination: "I would have discussed almost all of them, that was the rea- son, you know I don't listen to those things idly, we dis- cussed almost everything that was raised at those meet- ings." With respect to the complaint of lack of communication Brousard testified on cross-examination: "I told Harvey we should listen to the techniques-we should use those meetings for employee communications- one of the main complaints-that there was a lack of com- munication between-technicians-and their immediate supervisors and I expected that he should do something MONTGOMERY WARD & CO, INCORPORATED 115 about it." Both Brousard and Harvey denied making any promise to set up regular grievance sessions, and that the conversation between Harvey and Brousard occurred after the meeting according to Brousard. According to the testi- mony of Harvey and Brousard their response was always in the nature of "we will look into it." However, as indi- cated, Brousard was extremely upset over that particular complaint and viewed it as one of the foremost of the com- plaints. Harvey's testimony was that he was surprised by this complaint and that he stated to employees in the meet- ing: "Well my door has always been open. If you got a problem the door is always open." Service technician Rob- ert Sell testified that when in his meeting one technician raised as a complaint the lack of communication Brousard turned to Harvey and asked "what seems to be the prob- lem." Harvey indicated that he didn't think there was a problem and then Brousard stated "they could set up a bitch session like a grievance session and straighten out the problems" to which Harvey did not respond. In view of Sell's vivid recollection of this incident which is in accord with Brousard's testimony of chagrin and displeasure with Harvey, I credit Sell's version of Brousard's statement. However, I think that, under the circumstances, even under Brousard's version, there was an implicit promise to correct the situation. There is no evidence that a regular grievance session was actually set up either before or after the elec- tion. With respect to the handtools complaint, outside TV re- pairman Tillman testified that Harvey stated: "This is a minor situation that could be taken care of." Brousard tes- tified that the issuance of handtools to technicians which indeed had been occurring at Rosemont was contrary to the national policy of the Respondent. However, at the meeting, according to Brousard's own testimony, he did not tell the employees of the company's national policy in this regard but merely stated that he would "look into it." On cross-examination he explained that the reason he would look into it was for purposes of his own credibility since he had been stating that everthing was the same at tandem units. There was no subsequent change with re- spect to this policy at Posen before or after the election. With respect to complaints that employees were not re- ceiving the same amount of overtime compensation as Po- sen, Harvey and Brousard testified that the policy in this regard was identical at both the units and this was what they responded at the meetings Harvey also testified that to every complaint he or Brousard promised: "to look into it." The evidence is insufficient to conclude that any change in practice was effectuated regarding overtime. With respect to the scheduling of too many calls, the uniform response again by Harvey and Brousard was that they would look into it. They did look into it, found no disparity and no changes were made The evidence is insuf- ficient to indicate that the disparity did exist or that any meaningful change was made in regard to the number of calls assigned. With respect to the scheduling of calls Brousard conced- ed that this was a general policy that was peculiar to the manager of the individual service unit and varied from unit to unit across the country. Some managers felt that the office should reschedule calls whereas other managers felt that the individual serviceman should call his own custom- er and reschedule a call that he was not able to complete during his workday. However, Brousard did not tell this to the employees when a complaint was raised, But merely stated: "I said I'd look into it." Similarly, Harvey acknowl- edged that his response was that he did not know for a fact that Rosemont had their calls scheduled by the office but "I would look into it and find out." After checking with Rosemont he found out that it was a fact that rescheduling was handled from the office. Within a week after the elec- tion at a general meeting of servicemen, Harvey an- nounced to the technicians that all rescheduling was to be done by the dispatcher of the office. With respect to the complaint that more than one techni- cian should be assigned to a call in a high crime area, Henry Tillman credibly testified that Harvey' s initial re- sponse was that by assigning one man only one man ended up getting "beat up." Whereupon Brousard retorted that he would "hate to be that one man." Thereupon, Harvey stated that in the past no one had asked him for a partner on such an assignment and that had they done so they would have been granted permission. With respect to the complaint raised by the telephone contract solicitors that the rate of commission varied from that at Rosemont, the Respondent not only looked into it but accommodated the desires of its contract solicitors upon inquiring specifically of those desires, and changed its rate of commission policy at Posen to conform to that granted at Rosemont within a day or so after learning of the disparity at a point in time which preceded the election. It appears that there was a different rate of commission that was being granted for sales of regular service contracts for individual appliances and the so-called golden con- tracts which covered a multitude of appliances The rates of commission did not comport to that paid at Rosemont. Rosemont paid no commission for "golden contracts," but 5 percent on regular contracts. Posen paid $6 for every golden contract sold, but only 2 percent for every regular contract. After one of the first meetings where this was raised Harvey checked it out with the Rosemont unit, went back to his employees in the contract department, told them of the situation, and advised them that pursuant to their decision it would retain the present system at Posen or institute a system to comport with Rosemont. Almost immediately thereafter the contract solicitors conducted a vote among themselves and the majority decision was to change to the Rosemont system. Harvey was so advised and less than a day after being advised announced that the rate of commission would be changed to reflect the Rose- mont rates. As to the impact on the earning capacity of the individual employee, that would depend upon the individu- al employee's peculiar talents to sell one type of policy rather than the other. The record indicates that some em- ployees concentrated on selling golden contracts, and that, therefore, when the system was changed to reduce the rate of golden contracts and increase the rate of regular con- tracts their earnings would have been impacted. Thus, the employer argues that no benefit was instituted prior to the election to affect the outcome of the election and that it was "six of one and half a dozen of the other." I agree with the employer that the evidence is not sufficient to establish 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the earnings of the contract solicitors generally in- creased by these changes in working conditions prior to the election . But, in any event , the record is clear that the change arose as a result of an expression of preference by employees as to their mode of compensation , and a change was effectuated prior to the election . They were granted what they considered to be a benefit. Moreover, the grant- ing of this benefit was a clear signal to all employees that other complaints would be remedied. Finally, a question raised by numerous employees at these meetings was whether or not they were to receive an expected wage increase on August 1, 1975. The granting of an annual wage increase at the Posen service center is di- rectly geared to the granting of a wage increase at the Rosemont, Illinois, service center. This has been brought about as a result of a deliberate national policy of the Re- spondent. That policy was described by Brousard as fol- lows: Respondent has numerous contracts with Local 743, but its negotiations with Local 743 are part of a larger group. That is to say that the International Union main- tains a Montgomery Ward council composed of represen- tatives of local unions throughout the country which repre- sent various Montgomery Ward facilities including nine catalog houses. Each catalog house is represented by a lo- cal of the Teamsters union. Seven of the nine catalog hous- es are adjacent to a retail store outlet which is also repre- sented by the same local of the Teamsters union. Twenty-five to thirty retail stores are represented by Team- sters locals as well as several large distribution centers. In each of the nine catalog house locations there are also a number of other facilities that are represented by Team- sters locals and one of those facilities or functions are re- pair service centers such as the Posen service center and the Rosemont service center in Illinois . Within the service centers are units composed of customer service technicians and clerical employees . Brousard explained that central ne- gotiations with the Teamsters union take place for the nine catalog houses, the attached stores, the detached stores, and the distribution centers. The negotiations are simulta- neously conducted in Chicago. The Montgomery Ward council is presided over by Donald Peters, who is also the president of Local 743. As a result of the centralized bar- gaining, one basic contract is negotiated for all nine cata- log houses , but each catalog house negotiates its own indi- vidual contract which provides variations for wage rates for each location and perhaps a variation on holiday pay. With respect to provisions covering seniority, arbitration, grievance procedures , work assignments, etc., the contracts are identical as is true with the basic contract with the retail store facilities. With respect to the repair service units, they are part of the "metro district contract." Thus, the Rosemont contract is part of the "Chicago metro dis- trict" contract which also covers the Franklin Park ware- house catalog sales unit, repair service units. The contracts are identical for the most part except for the variation in the wage rates. The benefit program includes group insur- ance program, the long term disability program, the retire- ment program, the vacation program, employee discounts, jury pay, funeral pay, and at one time the profit-sharing program which now is no longer in existence . The benefit program is identical in all of the Respondent's contracts with the Teamsters union . The Teamsters contracts cover a total of 15,000 employees. The Respondent employs ap- proximately 125,000. The companywide benefit program for all 125,000 employees is the same whether they are represented by the Teamsters union, other labor organiza- tions, or whether they are represented by no union. The sole exception involves the Respondent's private trucking operation called the "ward fleet" whereby the over-the- road drivers contribute to the Teamsters health and welfare pension fund. All other Respondent drivers possess the same benefits as other employees. The centralized bargain- ing is held pursuant to mutual agreement of the Union and the Respondent . The Union presents at the centralized ne- gotiations a consolidated list of proposals for each separate unit. Separate negotiations take place with the various lo- cal representatives in which individual concerns are dis- cussed. However, despite the fact that there is one basic benefit program and a basic contract, minor variations in conditions of employment do occur, as, for example, the issuance of handtools at Rosemont and the amount of pre- mium paid contract solicitors at Rosemont is not covered by the union contract. With respect to the nonunionized facilities, it is Respondent's deliberate nationwide policy referred to as the "tandem policy" to implement all the economic fea- tures of the union contract at tandem nonunionized loca- tions. This was the Respondent's practice with respect to the Gary service center where it implemented the wage rates, payment of overtime, holidays, etc., which were ne- gotiated at the Rosemont service center. That practice con- tinued to be applied after the transfer of the Gary service center to Posen , Illinois. The annual wage increase imple- mented at Rosemont on August 1, 1975, was also sched- uled to have been effectuated at Posen on the same date. The increase included a general wage increase plus a cost- of-living allowance . Brousard and Harvey also testified that it was the Respondent's policy to pay the clerical em- ployees at Posen 10 cents per hour more than was paid to the clerical employees at Rosemont. This testimony was uncontradicted. Harvey discovered, however, after review- ing the discussions at the preelection meetings that not all clericals at Posen were paid the additional 10 cents per hour as required by that policy. The tandem policy with respect to the annual wage in- crease was, of course, well known by the employees and a great number of questions arose as to whether they were going to receive their annual wage increase on August 1. Brousard testified that his response to the questions regard- ing the status of the scheduled wage increase was that if the Union failed to obtain a majority on the July 25 election then the increase would be granted, but if the Union did obtain a majority the matter would be negotiated with the Union. He told the employees that he had no way of know- ing how quickly negotiations would take and how soon a contract would be executed. He conceded that sometimes negotiations can be protracted and at one meeting he indi- cated that it could take as long as 6 months. He conceded that he did refer to a unit in Tampa, Florida, which was certified in December and thereafter a contract was execu- ted on June 1. Brousard stated that he told the employees that retroactivity is also negotiable. In substance this com- MONTGOMERY WARD & CO., INCORPORATED 117 ports with the testimony of most of General Counsel's wit- nesses. Harvey testified that he recalled Brousard stating that if the Union won the election: "that from that point on everything was negotiable because they would be . . . it would be between the two the Union and the company to negotiate these things." Based on my observation of Brous- ard as a witness, his ability to recall, to place statements within context, and the substantial corroboration of his version by most other General Counsel witnesses, I discre- dit the version of General Counsel witness Michael Young that Brousard stated flatly that the employees "won't get a cost of living raise" if the Union wins. However, it is quite clear from Brousard's testimony and the testimony of Gen- eral Counsel's witnesses that the message to the employees was if the Union did not win the election on July 25, the August 1 increase would be effectuated automatically in accord with the employer's tandem policy; but if the Union did receive a majority of ballots cast on the Friday election on July 25 the wage increase would be deferred and its ultimate fate subject to the give and take of collec- tive bargaining. The obvious implication was that it could be lost entirely or effectuated later with or without retroac- tivity. The Union failed to obtain a majority of ballots at the election, and the Respondent put into effect on August 1, 1975, in accord with its tandem policy with Rosemont, an 8-percent increase in wages plus a 12-percent cost-of-living increase. Additionally those clerical employees, who were not paid at the 10 percent an hour in excess of the Rose- mont rate were also brought up an additional 10 cents an hour. August 1, of course, was the fifth working day fol- lowing the election and the last day on which objections to the election could be timely filed. It is important to keep in mind that a discussion of the wage increase during the meetings was intimately connect- ed to and within the context of Brousard's message to the employees that there was no reason for them to seek union representation because of the employer's nationally prede- termined tandem policy. Thus, Duck testified: "he couldn't see how we wanted it . . . we had everything that Rose- mont had...." Joy Pichler's credible testimony was that she asked if the Union would be able to obtain a job bid- ding procedure and the response was: "They said it didn't matter that supervisors could hire and place employees where they want to." DeSalvo testified that the employees were told that they would get the same benefits as Rose- mont plus they would have to pay dues. Dorothy Ward testified that Brousard stated. "The Union would not be of any help to us at all . . . it could not negotiate anything . . we would be paying out dues for nothing...." Jack Laubaugh, an outside technician, testified that Brousard stated that there was no real need for a union because the employees were receiving the same benefits as Rosemont. Michael Young testified that Brousard stated "that he doubted recognition would help our bargaining power since we already have all the benefits of our brother satel- lite Rosemont " Henry Tillman testified that Brousard told 31t should be noted that there were five determinative challenges that remained to be disposed of before certification could issue even if no objec- tions were filed his group that the Union would be of no advantage. Brousard's rebuttal to this testimony was as follows: Q. (By Mr. Curran) There was testimony here rela- tive to a statement that you would have made saying that if the union won that you would not negotiate anything that the employees would get the same con- tract at Rosemont. Do you recall anything along those lines? A. I say that probably, in most of the meetings, that if the union won that we would negotiate a contract. I did tell the people that we had presently in the company uniform benefits, in the course of these dis- cussions we had uniform benefit programs nationwide which were incorporated in our union contracts, I said the wages and benefits were subject to bargaining, but I told them that our bargaining experience resulted in our still having uniform programs, but I, in fact, was very careful to make it clear to them that wages, and benefits were bargainable subjects, but I did tell them that they were personally receiving the same things as Rosemont, that they had had identical benefits at Rosemont as the Rosemont employees benefit pro- grams that were in their contract were the same as their benefits programs and, probably, at a couple of meetings had suggested to them that they could decide for themselves as to what they thought they could bar- gain something different than that employees at Rose- mont than we did for other employees. On cross-examination Brousard testified: Q. (By Mr. Rubin) All right Mr. Brousard you have told us on at least two occasions, I believe, that you told the employees that you personally did not under- stand why any of them would want a union or words to the effect? A. Words to that effect, yes Q. Am I correct that that was your raising of this was as part of your campaign, which is embodied in the small group meetings? A Well, to explain to them that they are receiving the same benefits as union employees, yes, that cer- tainly is part of it. Q. And to explain to them the Company's point of view, there is no need for a union, right? A Yes, yes. I conclude that Brousard in effect told the employees that they automatically would receive the same benefits as the unionized Posen operation if they did not select the Union, whereas if they selected the Union, albeit the em- ployer would go through the motions of negotiation of a new contract, any such contract would inevitably obtain the same predetermined nationwide benefits and wage rates as was granted at Posen. Even under Brousard's ver- sion the message was clear, a union victory would be a futility, and that in no event would union representation result in improvements of working conditions. IV ANALYSIS AND CONCLUSIONS I find that the Respondent has violated Section 8(a)(1) of the Act by conducting a series of meetings of employees 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD within a few days of the scheduled election during which it solicited its employees' complaints and implicitly promised to remedy those complaints, for the purpose of eroding support among the employees for the Union immediately prior to the election. Reliance Electric Company, Madison Plant Mechanical Drives Division, 191 NLRB 44 (1971), enfd 457 F.2d 503 (C.A. 6, 1972); Shulman's Inc of Nor- folk, 208 NLRB 772 (1974); Ken McKenzie's, Inc, 221 NLRB 489 (1975); Litton Dental Products Division of Litton Industrial Products, Inc., 221 NLRB 700 (1975). I conclude that the employer additionally violated Section 8(a)(1) of the Act by remedying the complaint of the telephone solici- tors regarding their mode of commission payment prior to the election I further find that Respondent violated the Act by in- forming the employees that their wage increase would not be implemented as scheduled if the Union won the elec- tion. Respondent's argument that Brousard was merely ex- plaining "the legal consequence of a union victory" is with- out merit. It is clear that if in the normal course of events employees would have received a wage increase the mere pendency of a question concerning representation would not impede implementation of such a raise. Rather, an em- ployer who withholds such increase and tells employees that the reason for the withholding is a pending petition violates the Act Florida Steel Corporation, 221 NLRB 371 1975), GAF Corporation, 196 NLRB 538 (1972), Montgom- ery Ward and Co., Incorporated, 187 NLRB 956 (1970). The fact that a union has been certified does not justify an employer's withholding of a wage increase that otherwise would have been implemented in the absence of such certi- fication. The Board has found that an employer violated the Act where that employer withheld a promised wage increase because in the interval between the promise and the effective date of the wage increase the employees se- lected a union to represent them, and the employer antici- pated that wages would be part of any package it would be asked to agree to in a collective-bargaining agreement United Aircraft Corporation, Hamilton Standard Division (Boron Filament Plant), 199 NLRB 658 (1972). Also, an employer who advised his employees that the only reason a pension plan was not implemented was because of the un- certainties of prospective bargaining demands by a newly certified union thereby violated Section 8(a)(1) of the Act. Tube-Lok Products, Eastern Division of Portland Wire & Iron Works, 209 NLRB 666 (1974). Similar conduct is found violative even in situations where there are appeals pending contesting the certifications. Russell-Newman, Manufacturing Company, Inc, 167 NLRB 1112 (1967), enfd. 406 F.2d 1280 (C A. 5, 1969); Howard Johnson Com- pany, 172 NLRB 763 (1968). Accordingly, I find that the Respondent violated Section 8(a)(1) of the Act by telling its employees that the otherwise automatic wage increase would not be granted in the event that the Union won the election because such institution would be subject to nego- tiation with the Union. I find this particularly violative in the factual context of this case wherein the employees were told of the futility of voting for a union. Additionally, I find that the employer violated the Act by not only accommodating the contract solicitors with respect to the commission rate prior to the election but also by the accommodation of the outside service technicians complaint with respect to scheduling of calls a week after the election, and by the institution on the fifth working day after the election of a 10-cent-an-hour additional wage in- crease for certain clerical employees who had not been re- ceiving the additional 10-cent rate above the Rosemont clerical rate of compensation. Such action is clearly a re- ward to employees for voting against the union and not only constitutes conduct sufficient to set aside an election but is also violative of the Act. Westminster Community Hospital, Inc, 221 NLRB 185 (1975); Shulman's Inc of Norfolk, supra, Ralph Printing & Lithographing Co, 158 NLRB 1353 (1966). Finally, I find that the employer by advising its employees of the futility of seeking union rep- resentation not only interfered with the election as set forth in objection no. 1, but also violated Section 8(a)(1) of the Act. Montgomery Ward and Co, supra, Tube-Lok Products, supra; Montgomery Ward & Co, Inc, 222 NLRB 965 (1976).' With respect to the allegation in the complaint that the Respondent set up a regular system of monthly grievance meetings with employees I find that the record contains insufficient evidence to base a finding thereon and I rec- ommend that this allegation be dismissed. V. THE OBJECTIONS Service The Petitioner filed its objections to conduct affecting the results of the election with the Regional Office on Au- gust 1, 1975. The last day for timely service of objections was the fifth working day after the election which would have been August 1, 1975 The then secretary to the union attorney (she is no longer employed by that firm) testified that on July 30, 1975, she placed a copy of the objections to the election in an envelope and had it stamped by the of- fice meter machine and put it in the outgoing mail for deposit in the mailbox. She testified that she could not recall precisely the address used but that it was either the Posen address or the Respondent's State Street address which is the same address of the Respondent's then coun- sel Daniel Meany who represented the Respondent at the representation proceeding. Mr. Meany subsequently left the employ of the Respondent. Brousard testified that he talked to the Board agent in charge of the case 2 weeks after the election to inquire whether objections had been filed because he had received none. On August 12, 1975, the Union's attorney forwarded to Brousard a copy of the objections with a covering letter indicating that he had been informed that the Respondent's copy of the original objections dated July 30, 1975, had been mislaid Brousard testified to receipt of the August 12 letter and attached copy of the objections shortly thereafter. The record con- tains only the testimony of Brousard that he informed a Board agent of nonreceipt. Former counsel Meany was not ° Although this was not alleged in the complaint as an 8 (a)(I) violation, it was fully litigated and closely related to the allegations in the complaint Cf Omark -CCI. Inc. 208 NLRB 725 (1974) MONTGOMERY WARD & CO., INCORPORATED 119 called to testify. (Meany is now an employee of the Re- gional office.) Respondent avers that it had not received a timely copy of the objections . Respondent argues that un- der Section 102.69(a) of the Board's Rules and Regulations it is required that: "Copies of such objections shall imme- diately be served on the other parties by the party filing them, and a statement of service shall be made." Further Respondent cites Section 102 . 112 which provides that: "Service of papers by a party on other parties shall be made by registered mail, or by certified mail, or in any manner provided for the service of papers in a civil act by the law of the State in which the hearing is pending." In its brief Respondent cites the Illinois Civil Practice Act, sec- tion 13.3 , which provides personal service process and al- lows for mail service only on out-of -state defendants and only then when accompanied by publication . Respondent argues that the objections should be rejected because they were not timely received. The Board has held in Sears Roebuck & Company, 117 NLRB 522 (1957), that evidence that a copy of objections sent by ordinary mail to an address given as a representa- tion proceeding by the other party is presumptive evidence of receipt. Cf. Tri-City Paving, Inc., 205 NLRB 174, 185 (1973); Thiele Tanning Company, 128 NLRB 19 ( 1960); Frederick Sansone Co., 127 NLRB 1301, 1302 (1960). I do not find the record evidence sufficient to overcome the pre- sumption of receipt. Moreover , the Board has stated in Alfred Nickles Bakery, Inc, 209 NLRB 1058 , 1059 (1974). "We do not say that there will be a `slavish' adherence to form rather than sub- stance. What we do say, however, is that in order to sup- port a variance or deviation from the clear requirements of the Board's Rules, there must be some showing that there has been an honest attempt to substantially comply with the requirements of the Rules, or, alternatively , a valid and compelling reason why compliance was not possible within the time required by the Rules." It is my conclusion that, assuming nonreceipt until on or about August 12, 1975, the circumstances in this case indi- cate that the Union made an "honest attempt to substan- tially comply with the requirements of the rules," and there has been no demonstration of prejudice by late receipt. Cf. Certain-Teed Products Corporation, 173 NLRB 229 (1968).5 Substance of the objections No evidence was submitted in support of Objections 6, 7, and 8, and the Union stated at the hearing that it did not wish to "press" these objections Accordingly, I recom- mend their dismissal. Petitioner alleges in Objection 3 that Respondent unlaw- fully interrogated employees as to their union wishes and desires and engaged in surveillance of union activities and/ or created the impression that union activities were being kept under surveillance. I find no evidence sufficient to warrant a finding that Respondent by its supervisors en- gaged in interrogation of employees other than soliciting 5 In view of the fact that the unfair labor practice charge had been filed on July 23, 1975, and alleged coercive conduct in the critical election period Respondent could hardly have been surprised the complaints at the series of meetings, nor do I find suffi- cient evidence that the Respondent engaged in surveillance or gave the impression of surveillance of its employees' union activities. One witness, contract solicitor Dorothy Ward, testified to a conversation that she had with Assis- tant Manager Favuzzo on July 23, 1975, which she said was initiated by him in the contract section where he invit- ed her to the training room At the training room when they were alone at or about 4:30 p.m. she stated that he inquired of her if she had any "problems." She states that she asked him what he meant and he responded that "he heard that the girls at Rosemont were making more money than the girls at Posen." He refused to explain and stated "I have heard a lot of things about you." She asked him to explain and he refused. Favuzzo also testified that he re- called having a conversation on or about that time with Ward and that he initiated it because she looked somewhat depressed, and he asked her what was bothering her. They did proceed to the training room where Favuzzo states Ward indicated that she was upset over having been trans- ferred some months earlier from the position of secretary to Harvey to her present position. The witness did not strike me as the type of person who would brood for months for such a demotion Favuzzo testified that Ward invited him to call her at home and discuss the situation again which in fact occurred subsequently Although I credit Ward's version of the conversation, I find that it is much too ambiguous and enigmatic to conclude that the Respondent by its agent, Favuzzo, engaged in interroga- tion of employees' union activity, or surveillance or creat- ing the impression of surveillance of union activities. There being no other evidence in the record to support this objec- tion, I recommend that it be dismissed. With respect to Objection 5, the Union contends that the Respondent, by calling employees individually in small groups at the locus of management authority, interfered with the election. The Respondent contends that these meetings were similar to those meetings that the employer conducted in NVF Company, Hartwell Division, 210 NLRB 663 (1974), which were found by the Board not to have constituted interference with an election. In that case the Board rejected a broad, per se, application of the Peoples Drug doctrine,6 in regard to the practice of calling employ- ees individually or in small groups into a private area re- moved from the employees' normal work station. The Board concluded in NVF that the employer did not inter- fere with the election by its general manager's conduct dur- ing the I-month period preceding the election in which he summoned employees into his office in groups of five or six to discuss the prospective election. In that case the Board found that there was no other place in which employees could be interviewed other than the general manager's of- fice and, moreover, the general manager's remarks to em- ployees were noncoercive. The instant case is clearly distin- guishable As I have found above the employer engaged in coercive conduct violative of the Act in conducting the series of meetings in this case. I therefore recommend that Objection 5 should be sustained. The balance of the conduct set forth in the objections 6 Peoples Drug Stores, inc, 119 NLRB 634 (1957) 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parallels conduct which I have concluded constitute viola- tions of Section 8(a)(1) of the Act Accordingly, I recom- mend that they be sustained and a second election be di- rected. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has interfered with, restrained, and coerced employees in the exercise of their rights under Sec- tion 7 of the Act, in violation of Section 8(a)(l) of the Act. 4. Such unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. By engaging in the aforesaid unlawful conduct, the employer interfered with the free choice of employees in the election. THE REMEDY Having found that the Respondent engaged in certain unfair labor practices, I recommend that it be required to cease and desist therefrom and from any like or related conduct, and to post appropriate notices. The Charging Party argues in its brief that circumstances of this case, in particular the testimony of Brousard that he utilizes small group meetings of employees in preelection counterorgani- zational activities at other Respondent locations, warrant a nationwide posting of notices My findings of violations are limited to this particular location. The holding of small group meetings and the presentation of an employer's point of view are not violative of the Act per se The man- ner in which Respondent's agent, Brousard, effectuated his technique at other locations therefore was not fully litigat- ed. Accordingly, I find that it would be unwarranted to recommend posting of notices other than at the Posen lo- cation which is the only location alleged in the complaint to have been involved herein It is further recommended that the election which was held on July 25, 1975, be set aside and that Case 13-RC- 13728 be remanded to the Regional Director for Region 13 for the purpose of conducting a new election at such time that he deems that such circumstances permit a free choice of bargaining representative. On the foregoing findings of fact, conclusions of law, and the entire record herein, and pursuant to Section 10(c) of the Act, I hereby recommend the following: changes in commission rates paid to contract employees, changes in procedures for canceling and rescheduling servicemen's appointments with customers, or other bene- fits, or promising to establish a regular system of monthly grievance meetings with employees, or inviting employees to present their grievances with an express or implied promise that they will be remedied, for the purpose of in- fluencing employees to reject representation by Ware- house, Mail Order, Office, Technical, and Professional Employees Union, Local No. 743, affiliated with the Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, or any other labor or- ganization, provided, however, that nothing herein shall be construed as requiring Respondent to vary or abandon any economic benefit or any term or condition of employment which it has heretofore established. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act. (a) Post at its Posen, Illinois, facility copies of the at- tached notice marked "Appendix." 8 Copies of said notice on forms provided by the Regional Director for Region 13, after being duly signed by the Respondent's representative, shall be posted by the Respondent immediately upon re- ceipt thereof and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 13, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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 B 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 " APPENDIX ORDER7 Respondent, Montgomery Ward & Co, Incorporated, Posen, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Telling employees that in no event would union rep- resentation result in improvements in their conditions of employment, or telling employees that wage increases would not be granted as scheduled if a majority of employ- ees vote for a union, or announcing or putting into effect NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice and comply with what it says. The National Labor Relations Act gives all employees these rights- MONTGOMERY WARD & CO., INCORPORATED 121 To engage in self-organization To form, join, or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or mutu- al aid or protection To refrain from any and all of these things. WE WILL NOT do anything that interferes with these rights. WE WILL NOT tell employees that in no event would union representation result in improvements in their conditions of employment, or tell them that wage in- creases would not be granted as scheduled if a majori- ty of employees voted for a union, or announce or put into effect changes in commission rates paid to con- tract employees, changes in procedures for canceling and rescheduling servicemen's appointments with cus- tomers, or other benefits, or promise to establish a regular system of monthly grievance meetings with employees, or invite employees to present their griev- ances with an express or implied promise that they will be remedied, for the purpose of influencing employees to reject representation by Warehouse, Mail Order, Office, Technical and Professional Employees Union, Local No. 743, affiliated with the International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, provided, however, that nothing herein shall be con- strued as requiring us to vary or abandon any eco- nomic benefit or any term or condition of employ- ment which we have heretofore established. WE WILL NOT in any like or related manner infringe on rights guaranteed employees by the National La- bor Relations Act. MONTGOMERY WARD & CO., INCORPORATED