Montgomery Ward & Co., Inc.

750 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-15118 and 13-RC-13757 March 16, 1977 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On November 17, 1976, Administrative Law Judge Jerry B. Stone issued the attached Decision in this proceeding. Thereafter, Respondent Employer (here- in called Respondent) and the Charging Party- Petitioner (herein called the Union or Petitioner) filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge, as modified herein, and to adopt his recom- mended Order, as modified below. The Administrative Law Judge found that the interrogation of employee Georgia Webb by outside placement specialist Sally Gaver did not violate Section 8(a)(1) of the Act because Gaver was not an agent of Respondent. However, the Administrative Law Judge, on the basis of "the relationship of Gaver to Webb as regards Webb's employment, coupled with the coercive remarks of Gaver," found that the same interrogation constituted objectionable conduct interfering with the results of the election held on December 3, 1975. We conclude, for the reasons set forth below, that Gaver was an agent of Respondent in her conversations with employees and that consequently her interrogation of Webb both violat- ed Section 8(a)(1) of the Act and interfered with the election. Gaver was a placement specialist and consultant for the Ray Graham Association for the Handi- capped and was responsible for Respondent's hiring i The Charging Party has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule 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 (CA. 3, 1951). We have carefully examined the record and find no basis for reversing his findings 2 Sterling Faucet Company, Texas Division, a Subsidiary of Rockwell 228 NLRB No. 89 of a number of her former patients. After the employees were placed in jobs, Gaver continued to meet with them both at work and elsewhere in order to counsel them with respect to employment-related problems. At Respondent's request Gaver was visiting the warehouse on September 9, 1975, on a matter relating to another employee and asked to see Georgia Webb, whom Gaver had placed with Respondent a year earlier. Webb interrupted her work and spoke to Gaver in one of the management offices. The Administrative Law Judge found that during the discussion Gaver questioned Webb as to her involvement in the union campaign and warned her that if the Union's organizing efforts were successful her job would be in jeopardy. The record establishes that Gaver performed a service for Respondent in counseling employees, often on company time and premises. Employees were aware of Gaver's role in placing employees in jobs, and her appearances during working hours to aid management in handling personnel problems put her in a position to be identified with management in the eyes of employees. Consequently, Gaver' s state- ments could be interpreted by employees as those of management. Accordingly, we find that Gaver was an agent of Respondent 2 and that her interrogation and threats3 to Webb violated Section 8(a)(1) of the Act. The Administrative Law Judge recommended that the Union's Objection 7, alleging threats of reprisal for union activity, be overruled. Inasmuch as we find that Gaver's statement to Webb that the latter's job might be jeopardized was a threat in violation of Section 8(a)(1) of the Act, we find that such threat also constituted interference with the election and we shall, therefore, sustain the objection. AMENDED CONCLUSIONS OF LAW Substitute the following paragraphs for the Admin- istrative Law Judge's Conclusions of Law 3, 10, and 11: "3. By soliciting employee grievances and prom- ising to act favorably thereon, and coercively interrogating employees concerning their union sympathies and activities and threatening them with discharge Respondent has interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act, thus Manufacturing Company, 203 NLRB 1031, 1032 (1973); The Huntington Hospital Inc., 227 NLRB No. 44 (1976). 3 Although the Administrative Law Judge found that Gaver told Webb her job might be in jeopardy if the Union succeeded in organizing Respondent's employees he failed to characterize this comment as a threat. We find that Gavers remark was a threat of reprisal for union activity and that it consequently violated Sec . 8(a)(l) of the Act. MONTGOMERY WARD & CO. 751 engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. "10. As alleged in Objection 7, during the critical period (July 11, 1975, to December 3, 1975), the Employer, by its officers, supervisors, and other agents, threatened employees with reprisals if they joined, supported, or assisted the Petitioner. "11. The facts establish as set forth in Objections 1, 3, and 7 (referred to in Conclusions of Law 5, 7, and 9) that the Employer engaged in conduct which interfered with employees' exercising a free and untrammelled choice in the representation election held in Case 13-RC-13757 on December 3, 1975." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that the Respon- dent, Montgomery Ward & Co., Incorporated, Chicago, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 1(b): "(b) Interrogating its employees with respect to their union activities or sympathies." 2. Insert the following as paragraphs 1(c) and (d): "(c) Threatening its employees with discharge or other reprisal because of their union activities or sympathies. "(d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act except to the extent that such rights may be affected by lawful agreements in accord with Section 8(a)(3) of the Act." 3. Substitute the attached notice for that of the Administrative Law Judge. IT IS HEREBY FURTHER ORDERED that the election held on December 3, 1975, in Case 13-RC-13757 be, and it hereby is, set aside, and that said case is hereby remanded to the Regional Director for Region 13 to conduct a new election at such time as he deems that the circumstances will permit the free choice of a bargaining representative. [Direction of Second Election and Excelsior foot- note omitted from publication.] APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT solicit employee grievances or complaints and in connection therewith promise employees to act favorably upon such grievances or complaints if the employees refrain from supporting or engaging in activities on behalf of the Union. WE WILL NOT threaten our employee with discharge or other reprisal because of their union activities or sympathies. WE WILL NOT interrogate employees with respect to their union activities or sympathies. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act except to the extent that such rights may be affected by lawful agreements in accordance with Section 8(a)(3) of the Act. MONTGOMERY WARD & CO., INCORPORATED DECISION STATEMENT OF THE CASE JERRY B. STONE, Administrative Law Judge: This consolidated proceeding, under Section 10(b) and Section 9 of the National Labor Relations Act, as amended, was heard pursuant to due notice on July 6, 7, and 8 , 1976, at Chicago, Illinois. The charge in Case 13-CA-15118 was filed on February 9, 1976, and served on the Respondent on February 11, 1976. The complaint in this matter was issued on March 11, 1976. The issues concern whether the Respondent has engaged in conduct violative of Section 8(a)(1) of the Act by interrogation of employees about union activities or desires, and by soliciting grievances from employees and promising affirmative action thereon if the employees refrained from supporting the Union or engaging in union activities. The representation petition in Case 13-RC-13757 was filed on July 11, 1975. Thereafter, on October 30, 1975, the Acting Regional Director for Region 13 of the National Labor Relations Board issued a Decision and Direction of Election in Case 13-RC-13757. The election in Case 13- RC-13757 was held on December 3, 1975, under the direction and supervision of the Regional Director for Region 13. Challenged ballots were sufficient to affect the results of the election wherein 30 votes had been cast for Petitioner and 39 votes against said Petitioner. Timely objections to conduct affecting the results of the election were filed by the Petitioner on December 10, 1975. Thereafter, on January 30, 1976, the Regional Director 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issued a Supplemental Decision on Challenges and Objec- tions in Case 13-RC-13757. In the said Supplemental Decision the Regional Director resolved the question of the 10 challenged ballots by sustaining the challenge to one of the ballots and fording that the remaining challenges were not sufficient to affect the results of the election held on December 3, 1975. The Regional Director set forth in his Supplemental Decision that no evidence was presented in support of Objections 5 and 6 and that such objections were overruled. The Regional Director found that Objec- tions 1 , 2, 3, 4, and 7 raised substantial and material issues which could best be resolved on the basis of record testimony and/or other evidence developed at a hearing. The Regional Director further ordered a hearing on Objections 1, 2, 3, 4, and 7. Thereafter the Petitioner requested that the Board review such Supplemental Decision . The Board on February 26, 1976, granted such request for review and ordered that the scope of the hearing on objections be enlarged to include Objection 5. The issues in the objection case (Case 13-RC-13757) concern whether the Employer made promises of benefits and granted benefits to dissuade employee support of the Union, whether the Employer interrogated employees as to their union wishes and desires , whether the Employer engaged in surveillance or created the impression of surveillance of employee union activities , whether the Employer designated a supervisor as an observer at the election on December 3, 1975, and whether the Employer threatened employees with reprisals if they joined, support- ed, or assisted the Union. On April 7, 1976, the Regional Director issued an order consolidating Cases 13-CA-15118 and 13-RC-13757 for hearing. All parties were afforded full opportunity to participate in the proceeding. Briefs have been filed by all parties and have been considered. Upon the entire record 1 in the case and from my observation of witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER The facts herein are based upon the pleadings and admissions therein. Montgomery Ward & Co., Incorporated, the Respon- dent, is, and has been at all times material herein, a corporation . At all times material herein, Respondent maintained its principal office and place of business at Montgomery Ward Plaza, Chicago, Illinois, where it is engaged in the retail sale of merchandise . It also maintains a warehouse facility at 1010 Foster Avenue, Bensenville, Illinois . In the course and conduct of its business operations Respondent received an annual gross revenue in excess of $500,000 during a representative 1-year period. During the same period Respondent, in the course and conduct of its business operations, purchased and received goods and materials valued in excess of $50,000, which were shipped directly from outside the State of Illinois. As conceded by Respondent and based upon the foregoing, it is concluded and found that the Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED Warehouse, Mail Order, Office, Technical and Profes- sional Employees Union, Local No. 743, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICE ISSUES ; OBJECTIONS TO THE ELECTION ISSUES A. Introduction; Ruling on Motion To Amend Complaint The unfair labor practice issues are limited and concern (a) whether Respondent on or about November 19, 20, and 28 and December 1, 1975, conducted group employee meetings and solicited employee grievances concerning wages, hours, and working conditions; (b) whether, at such meetings, Respondent promised to act affirmatively upon said grievances if the employees refrained from supporting or from engaging in other activities on behalf of the Union, and (c) whether, on or about August 18, 1975, Respondent, by Operating Manager Stocker, interrogated an employee about his union activities, sympathies, and desires. Since this proceeding was a consolidated proceeding (objections and unfair labor practice issues), since the General Counsel has discretion concerning the issuance of complaint or issues therein, and since the General Counsel's and the Charging Party's interests are similar in part but not in total respects, to ensure an orderly hearing with proper notice as to the issues, the parties were advised at the hearing that the unfair labor practice issues litigated would be those formally alleged and that the objection issues would be those ordered set for hearing. Although the General Counsel's complaint issues con- cerning the group meetings in November and December were limited to "solicitation of grievances" and "promises of affirmative action upon grievances," the General Counsel's opening statement alluded to proof of "granting of benefits," a matter covered only in the objection issues. The General Counsel was reminded that such issue was not alleged as an unfair labor practice issue and that I would only consider issues as litigated that were formally alleged. Thereafter, consistent rulings relating to receipt of evidence within the purview of the unfair labor practice issues for consideration for unfair labor practice issues were made. Similarly, consistent rulings relating to receipt of evidence within the purview of the objections issues for consider- ation of the objection issues were made. Because the objections issues and unfair labor practice issues were consolidated for hearing, the evidence for consideration of the unfair labor practice issues is the Errors in the transcript have been noted and corrected. MONTGOMERY WARD & CO. 753 evidence that touches upon such unfair labor practice issues formally alleged. Because of the consolidated aspects and the similarity of specific objection issues, the evidence relating to the unfair labor practice issues is also presented for consideration with respect to the objection issues. The evidence as to grant of benefits by the Respondent was presented only with respect to the objection issues. The General Counsel, on August 16, 1976, filed a brief for consideration by the Administrative Law Judge. On page 8 of 17 pages the General Counsel "moves to further amend the complaint to allege" as is revealed by the following excerpt from said brief: (e) During the month of December, 1975, or January, 1976, Respondent granted benefits to employees to dissuade them from further supporting or assisting the Union in that Respondent, in response to employee complaints, changed its overtime payment policy from payment after 40 hours per week to payment after 8 hours per day. In said brief the General Counsel set forth that "Counsel for the General Counsel would agree that the better practice would have been to move to amend the Complaint when the testimony of Wayne Roth and Jack Broussard had been completed. However, no prejudice can result to Respondent by inclusion of this additional allegation since the evidence was fully litigated. Granada Mills, Inc., 143 NLRB 957 (1963), and more especially, in view of the fact that admission of the change in overtime payment policy came from Respondent's witness, Mr. Broussard." Despite the problem of "notice" involved in the usage of a brief to set forth a motion, Respondent's counsel has been attentive and ascertained the "motion" included in the General Counsel's brief.2 Respondent's counsel points out that the matter that the General Counsel moves to amend has not been litigated as an unfair labor practice issue, and that the matter in such respect has not been fully litigated. On August 20, 1976, the Charging Party filed a document entitled "Union's Response to Post-Hearing Motion to Amend the Complaint." The Charging Party sets forth its position that the matter of "grant of benefits" has not been fully litigated as an unfair labor practice issue, that, however, the case should be reopened and the matter now litigated. I note that the issue of "grant of benefits" was included in the objections filed by the Union on December 10, 1975, and that on January 30, 1976, the Regional Director in his Supplemental Report on Objections found that substantial and material issues were raised with respect to such issue and recommended hearing thereon. On February 9, 1976, the Union filed the unfair labor practice charges in the instant C case. In such charges the Union essentially contended that the same type conduct contended to be objectionable conduct to the election also constituted unfair labor practices. The instant proceeding reveals that witness Roth gave an affidavit to an investigator for the Board's Regional Office on February 25, 1976, which set forth in effect that changes as to overtime practice by the Respondent occurred on or around January 25, 1976. I note also that the General Counsel, in opening statement at the hearing of this matter, stated that the General Counsel would establish that Respondent had "granted benefits." The General Counsel was reminded that the unfair labor practice issues did not cover such issue and that the issues would be limited to those formally alleged. Since the objection issues had broader scope, evidence was admitted on the grant of benefits issue but limited to the time period between the petition and the election. By virtue of the consolidated proceeding, evidence relative to "grant of benefits" was received concerning the referred-to time period. Thus, evidence of contended changes concerning lockers, chairs, overtime, etc., was received. Witness Roth, on direct examination, testified to a change in method of overtime pay which occurred either a week before or after the election. By virtue of the consistent rulings, this evidence related only to the "objection" issue. Involved in such an issue is whether such change occurred before or after the election held on December 3, 1976. The Respondent Employer cross- examined Roth and established that such change occurred around a month and a half after the election. Respondent witness Broussard was cross-examined in detail as to what transpired at the meetings he held with employees, as to what communications he held with local supervisors, and as to recommendations he made. In view of the proper latitude to be allowed on cross-examination, such examina- tion was proper and in line with the issues formally alleged. In answer to questions on cross-examination, Broussard admitted that he recommended to the Respondent's local officials that they should have an overtime policy different from the existing one because of the type of organizational structure at the warehouse. The General Counsel sets forth in effect a realization that it would have been better practice for the General Counsel to have made the motion to amend at the hearing, appears to suggest that Broussard's testimony was the missing link needed as a matter of proof upon the point involved, and argues that the matter has been fully litigated. I reject such contentions. It is clear that the matter has not been fully litigated for the purposes of an unfair labor practice allegation of conduct violative of the Act after the election held on December 3, 1976. All that the Respon- dent Employer had to do to successfully meet the issue of "grant of benefits" as to the objection issues was to show that such conduct did not occur on or prior to December 3, 1976. The General Counsel indicated clear awareness of this at the hearing but expressed a desire to "reserve at this time." The General Counsel was reminded that the issues considered and to be litigated were those formally alleged in the unfair labor practice complaint. No amendment alleging "grant of benefits" was made at that point or thereafter. As the hearing proceeded, rulings were con- stantly made relating to the evidence and whether it related to the unfair labor practice issues or objection issues. Considering the timing of the filing of objections, the wording of the objections, the Regional Director's Supple- 2 The practice of setting forth "motions" in briefs should be discouraged and eliminated. 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mental Decision on Objections, the timing of the filing of the underlying charge, the investigative affidavit of Roth, the allegations in the complaint, and General Counsel's statement of what would be proved initially, it is clear that the issue set forth in the proposed amendment is one that the General Counsel was aware of, that amendment could have been made at the hearing, and that the issue could have then been litigated at that time. Accordingly, I deny the motion of the General Counsel to amend the complaint to now allege violative conduct concerning changes in January 1976, as to method of overtime payment .3 B. Supervisory and Agency Status 4 At all times material herein, the following persons occupied the positions set opposite their names and have been, and are now, agents and/or supervisors of Respon- dent, acting on its behalf, within the respective meanings of Section 2(13) and (11) of the Act: Fred Spear - warehouse manager; Earl Stocker - operating manager; Jack Broussard - assistant labor relations director. C. Interrogation (ULP and Objection Issues) 1. The General Counsel alleged in his complaint and the Respondent denied that "On or about August 18, 1975, at the Respondent's warehouse facility, Respondent, by its agent and/or Supervisor, Earl Stocker, interrogated an employee about his union activities, sympathies and desires." The witnesses to this issue were Wilmon Collins and Stocker. Collins' testimony, viewed in the light most favorable to the General Counsel's case, would be to the effect that he had been to a union meeting and that later Stocker asked him if he had been to a meeting and questioned him as to how many people were at the meeting. The initial questioning of Collins was by leading questions . Later Collins was asked to relate what was said by him and Stocker. Collins was also questioned as to statements in his prehearing affidavit which were to the effect of some specific unlawful type of interrogation during the alleged incident. Stocker denied that he interrogated Collins about his or others' union activities or about union meetings. Considering the two witnesses and their testimony as a whole, I found Stocker to appear the more truthful and objective witness . I credit Stocker's testimonial denial that he engaged in unlawful interroga- tion of Collins. Accordingly, it will be recommended that the complaint allegation as to unlawful interrogation of employees about their union activities, sympathies, and desires be dismissed. 2. The General Counsel alleged in the complaint and the Respondent denied that, "On or about September 9, 1975, Respondent through its agent,, Sally Gayer, at Respondent's Bensenville premises interrogated an em- ployee about her union activity and desires." 3 Great Scott Supermarkets, Inc., 206 NLRB 447 (1973). * The facts are not disputed and are based upon a composite of the pleadings and admissions therein and evidence relating to Broussard's status 5 Webb appeared to be a truthful and objective witness. Gaver's testimony bordered upon conclusion and interpretation as to detail. I credit Webb's testimony over Gaver's where in conflict. The evidence is clear and I credit Georgia Webb's testimony to the effect that on or about September 9, 1975, Gayer questioned her as to whether she was getting involved in the Union and as to who was organizing for the Union and told her not to get involved with the Union because, if the Union was successful in organizing, her job could be in jeopardy.5 The critical issue as regards the complaint issue is whether Gayer was an agent of the Respondent when talking with Webb on September 9, 1975. In my opinion, the evidence does not establish that Gayer was an agent for the Respondent in such interrogation as occurred. Gayer is a placement specialist and consultant for Ray Graham Association for the Handicapped. Such association had placed a number of patients with the Respondent as employees. Among those placed were Georgia Webb and Gene Fairhurst. At various times Gayer or other consul- tants are requested by the Employer to visit such employ- ees concerning emotional and related type problems.6 On or about September 9, 1975, Respondent's manager of distribution, Fred Spear, requested Gayer to see employee Fairhurst. Gayer made a visit to Respondent's premises and saw Fairhurst and Webb. There is no evidence that the Respondent requested or authorized Gayer to speak on its behalf as to its policy concerning the Union. Nor do I find the evidence convincing that the Respondent would reasonably foresee that Gayer would engage in interroga- tion or talk concerning the Union. Under such circum- stances, I am persuaded that the evidence is insufficient to reveal that the Respondent had constituted Gayer to be an agent for the purpose of talking to Webb about the Union or interrogating Webb concerning the Union. Accordingly, the allegation of unlawful interrogation, violative of Section 8(a)(1) of the Act, will be recommended to be dismissed.? Objection Issue 3. The Petitioner's Objection 3 alleged that "During the critical period, the employer, by its officers, supervisors, and agents coercively interrogated employees concerning their union wishes and desires." The critical period involved the time between July 11, 1975, and December 3, 1975. The evidence presented concerning this issue consisted of the evidence relating to the alleged interrogation by Stocker, the interrogation by Gayer, interrogation by Devila, and interrogation of Connelly by Stocker. I have previously found the evidence insufficient to establish violative interrogation of Collins by Stocker. Although I have found that the Respondent was not liable, within the purview of the unfair labor practice allegations, for the interrogation of Webb by Gayer on September 9, 1975, I am persuaded that such interrogation of Webb as to employee union activities constitutes objectionable con- duct affecting the results of the election held on December 8 There is no financial or other relationship between Respondent and the Ray Graham Association. 7 As indicated later herein, I find such "interrogation" to constitute objectionable conduct affecting the election results of the election held on December 3, 1975. MONTGOMERY WARD & CO. 3, 1975. Such interrogation, reasonably construed, would have an effect on and would interfere with Webb's desires as to voting in said election. Witnesses Connelly and Devila testified with respect to an issue of alleged interrogation occurring in August 1975. Connelly's testimony as to what occurred was very confused. The following excerpts reveal Connelly's initial testimony as to what occurred. A. Then he said a union is trying to get in, and there will be people coming up to you and asking you about the union. If you would like to join or if you ever belonged to one. Q. He said other people would? A. Yes, but he didn't say who they would be. He said that there would be people coming up to you probably from the union. Then I told him I did belong to a union where I used to work, but the company I used to work for changed hands a couple of times, so I don't know. Q. Did Mr. DeVila say anything else about the union coming in or something? A. No, he didn't. Q. Did Mr. DeVila ask you any questions about the union? A. He asked me if I would help in there. I really didn't know at that time. Q. If you would help a union get in? A. If a union would come in here, would you like to vote for it or, you know. Q. He asked you if you would vote for it? A. Try and help a union to get in. I told him I didn't really know. Q. You didn't know? A. Right. Q. You do recall if Mr. DeVila asked you if you would help a union, is that right? A. Or try to help get the union or something like that. Further examination of Connelly revealed continued confusion. Devila denied interrogating Connelly about his union desires. While Devila was not a thoroughly forth- right appearing witness, the confused testimony of Connel- ly has little probative value. Considering Connelly's confused testimony, I am per- suaded that the facts are insufficient to reveal that Devila, in August 1975, engaged in "interrogation" which consti- tuted objectionable conduct affecting the results of the election held on December 3, 1975.8 Witness Roth credibly testified to the effect that, on the day of the election, December 3, 1975, Operating Manager Stocker spoke to him around 8:30 and asked him if he had voted or not. Roth credibly testified to the effect that he told Stocker that he had just left. Considering the foregoing, it appears that around 8:30 a.m. on the date of the election, during the time the election was being held, 8 The General Counsel's bnef appears to argue that Devila's alleged interrogation of Connelly was encompassed in the complaint allegations. It is not and was not so litigated. 9 The facts are based upon a composite of the credited aspects of the testimony of all witnesses who testified as to meetings held by Broussard 755 Stocker asked Roth whether he had voted or not. It appears that Roth had already voted at such time. There is no evidence that such interrogation was heard by other employees or was reported to others by Roth. Considering this, it is clear that the evidence does not reveal that Stocker's conduct interfered with Roth's voting desires or the voting desires of others. Accordingly, such conduct does not reveal objectionable conduct affecting the results of the election held on December 3,. 1976. Conclusion In sum, I conclude and find that the interrogation of employee Webb about employee union activity by Gaver, on or about September 9, 1975, constituted conduct which interfered with the results of the election held on December 3, 1975. Although I have found that Gaver was not an agent for the Respondent and that the Respondent was not liable for such conduct within the meaning of Section 8(a)(1) of the Act, the facts concerning the relationship of Gaver to Webb as regards Webb's employment, coupled with the coercive remarks of Gaver, persuade that Webb's right to exercise a free voting choice in the election was interfered with and that therefore such interrogation by Gaver constituted objectionable conduct interfering with the results of the election held on December 3, 1975. D. Solicitation of Grievances; Promises of Benefits (ULP and Objections Issues) A. The General Counsel's complaint alleges and the Respondent denies that (1) "On or about November 19, 20, 28, and December 1, 1975, Respondent conducted group employee meetings and solicited employee grievances concerning wages, hours and working conditions," and that "On or about November 19, 20, 28, and December 1, 1975, at employee group meetings, Respondent promised to act affirmatively upon said grievances if the employees refrained from supporting or from engaging in other activity on behalf of the Union." B. The Petitioner's objections, Objection 1, alleged that "During the critical period the employer, by its officers, supervisors and other agents made promises of benefit to employees to dissuade them from supporting or assisting the petitioner." The Facts 9 Apparently on November 18 and at least prior to November 19, 1975, at 8:30 a.m., the Respondent posted a notice to employees as follows: Bensenville, Il. November 10, 1975 TO: ALL STAFF EMPLOYEES and Spear on November 19, 20, at some date between November 20 and 28, and on November 28, and December 1, 1975, and upon exhibits in the record. The facts are not in real dispute except as to whether or not Broussard specifically alluded to doing something about solving gnevances. I credit Broussard's denial that he specifically alluded to solving gnevances. 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Personnel as indicated on the attached lists will attend meetings to be held in the Second Floor Conference Room. A member of Corporate Labor Relations staff will be here for the purpose of answering any questions you may have regarding the election on December 3, 1975, under the auspices of the National Labor Relations Board. P.F. Spear Manager Small Ticket Retail Pool Posted alongside such notice was a sheet of paper relating to "meeting(s)" for Wednesday, November 19, 1975, and upon which were various time period listings (e.g., 8:30-9:45 a.m.), and under such time period headings were names of employees in groups ranging from 8 to 11 employees in number. Such listings indicated scheduled meetings ranging from an hour and 15 minutes to an hour and a half in length for the named employees. Such listings indicated scheduled meetings at different times for five groups of employees. There was also posted a similar notice for employees scheduled to meet on November 20, 1975. The facts reveal that in substantial effect the meetings as scheduled were held. The General Counsel's witnesses testified in effect with regard to six of the nine meetings that were held. As to all but one of the meetings the General Counsel's witnesses thereto were limited to one in number. Such witnesses testified in effect to separate meetings attended by from six to nine employees. It is clear that at each meeting Spear, manager of distribution, introduced Assistant Labor Relations Director Broussard, and Broussard handled the rest of the meeting. Spear, for the Respondent, testified with respect to his general introduction of Broussard at all of the meetings. Broussard, for the Respondent, testified generally as to Spear's introduction and as to the general nature, and as to some details of the meetings. The general substance of the meetings is not in real dispute. On cross-examination, the General Counsel's witnesses agreed to much of what Broussard in effect later testified to. Broussard, in his testimony, stated that he had heard the General Counsel's witnesses testify and that their testimony comported with his recollection of what had occurred. The parties dispute whether the Respondent, by Brous- sard, at these meetings and at other meetings on November 28 and December 1, 1975, solicited grievances from employees. Despite such dispute in contentions, the facts overwhelmingly reveal that Broussard did in fact at the meetings on November 19 and 20, 1975, solicit grievances from employees. The posted notice scheduling the meetings (the notice dated November 18 and set forth before herein) referred to the meetings for the "purpose of answering any questions you may have regarding the election...." Spear testified to the effect that he introduced Broussard as assistant labor relations director for the Respondent. The overall testimony of all witnesses support this as having been done, and it is so found. Spear testified to the effect that he read partly from a prepared text and spoke extemporaneously also. Spear's testimony as to his intro- duction of Broussard was so general in nature that it cannot be said to be reliable to persuade that he read the text of his prepared introduction. This point is not, however, of great importance. The essential dispute is whether Spear suggested that employees ask any type of questions that they desired. The testimony of General Counsel's witnesses was to the effect that Spear told them that they should ask any questions or bring up any problem. Spear's prepared text contained statements to the effect that Broussard was there to discuss the complete area and to provide answers to any question, that Spear was to encourage the employees to ask questions, and that employees should freely discuss and ask questions of Broussard regarding the election. Spear told the employees to ask questions that they had raised to him and to ask any other questions that the people had in this whole area. Broussard also credibly testified that at these meetings he told the employees that the meetings were open meetings, that he was there to also learn what was on their minds, that they should feel free to talk and to raise questions and communicate. Broussard also credibly testified that he did not exclude anything as to the questions asked. The facts are clear that the employees voiced complaints and grievances on a broad spectrum. Such complaints and grievances touched upon the question of the number of tables, chairs, purse lockers, overtime, vending machines, uniforms, telephones, microwave ovens and other matter. It is clear that some of the items discussed touched matters that Broussard knew went beyond existing terms and conditions of employment. Thus, Broussard would reason- ably know that a requested microware oven touched a desired new benefit. Broussard would also reasonably have known that a requested additional pay telephone would have constituted a desired new benefit. The facts are clear that Broussard discussed many of the complaints and grievances, took notes as to complaints and grievances, told employees that he would check with Spear on complaints and benefits, and at no point told employees that certain aspects of complaints or grievances were not to be discussed. Solicitation of Grievances; Conclusion Considering all of the foregoing, it is clear and I conclude and fmd that the Respondent, by Broussard, in the meetings of November 19 and 20, 1975, solicited employee grievances and complaints. The solicitation of grievances or complaints, in and of itself, is not a violation of the Act excepting to the extent that such solicitation might imply a promise of benefit(s) in solution of such grievances. Promises of Benefit There is a factual dispute between the testimony of some of General Counsel's witnesses and Broussard as to whether Broussard specifically told employees in effect that he would find or get solutions to their complaints and grievances. I am persuaded that Broussard testified truthfully when he testified to the effect that he made no specific promises of benefits. This, however, does not MONTGOMERY WARD & CO. answer the question as to whether his conduct constituted a promise of benefits. As the Board has held in Uarco Incorporated, 216 NLRB I at 1 and 2 (1974), As noted by the Administrative Law Judge and by our dissenting colleague, the solicitation of grievances at preelection meetings carries with it an inference that an employer is implicitly promising to correct those inequities it discovers as a result of its inquiries. Thus, the Board has found unlawful interference with employee rights by an employer's solicitation of grievances during an organizational campaign although the employer merely stated it would look into or review the problem but did not commit itself to specific corrective action; the Board reasoned that employees would tend to anticipate improved conditions of employment which might make union representation unnecessary. However, it is not the solicitation of grievances itself that is coercive and violative of Section 8(a)(1), but the promise to correct grievances or a concurrent interrogation or polling about union sympa- thies that is unlawful; the solicitation of grievances merely raises an inference that the employer is making such a promise, which inference is rebuttable by the employer. Thus, the General Counsel in this case, by the proof establishing that Broussard engaged in the solicitation of employee grievances and complaints on November 19 and 20, 1975, has established a prima facie showing that the Respondent has impliedly promised to correct such grievances or complaints to dissuade their support of the union. Such prima facie case, however, can be rebutted. The issue narrows to whether the Respondent has rebutted the above-referred-to prima facie case. The Respondent contends in effect that Broussard told the employees that he was not making any promises. The facts are clear that Broussard did tell employees in the meetings that because of the pending election it was unlawful for him to make promises of benefits and that he was not making any promises. This, however, must be considered in context with all of the facts. Considering the evidence as a whole, I am not persuaded that the evidence as to Broussard's remarks about not making promises overcomes the establishment of a prima facie case of implied promises. Rather, I am persuaded that employees would construe such remarks as double talk, similar to a nod and wink, and construe that Broussard was saying that "I can't specifically tell you of promises of benefits, but you understand that my meaning is that there will be new or changed benefits." Accordingly, I conclude and find that the evidence establishes that the Respondent, by Broussard, on November 19 and 20, 1975, in small group meetings, made promises of benefit to employees to dissuade their support of the Union. Such conduct, as alleged in the General Counsel's complaint, is violative of Section 8(a) (1) of the Act. Such conduct, as averred in the objections, Objection 1, constitutes conduct which inter- fered with the results of the election held on December 3, 1975. Accordingly, Objection 1 will be sustained. 757 Spear's Conduct At some point of time between November 20 and 28, 1975, Spear, manager of distribution, spoke to the Employ- er's assembled employees with respect to some of the matters the employees had complained of to Broussard on November 19 and 20, 1975. As has been indicated, the parties were advised that the issues litigated would be those formally alleged. The evidence concerning Spear's conduct at such meeting was admissible only as having bearing on the objection issues. Essentially, the evidence relating to Spear's conduct appeared to have value only with respect to whether there had been grant of benefits as regards tables and chairs in the lunchroom and the receipt of new purse lockers. The evidence reveals in effect that there was no grant of new benefits in such regards and that Spear's remarks were to reveal that such items had been on order. Some of the evidence relating to Spear's remarks relates to "promises of benefit," not alleged in the complaint, but averred in Objection 1. It is sufficient to say that Spear's own testimony relating to "vending machines" and implying that employees later might be allowed a choice, constituted a "promise of benefit." Such conduct, as alleged in Objection 1, is objectionable conduct and, accordingly, I would sustain Objection 1 on this basis also. I have considered the other testimony relating to Spear's meeting with employees between November 20 and 28, 1975, and do not find that it relates to the issues alleged in the complaint or in the objections. The closest that the evidence approaches touching an issue is the testimony of Shirley Collins. Collins testified to the effect that Spear stated that, if they voted for the Union, they would be on their own, and if they voted no, they would have Fred Spear in their corner. Collins' testimony on direct and cross-examination, however, revealed an unreliability to such testimony. Accordingly, I do not credit such testimo- ny. In sum, except as indicated above, the evidence relating to Spear's conduct in a speech occurring between Novem- ber 20 and 28, 1975, does not have a bearing on the issues as litigated. The November 28 and December 1, 1975, Meetings Employee meetings similar to the ones held on Novem- ber 19 and 20, 1975, were scheduled and held on November 28 and December 1, 1975. At such meetings Assistant Labor Relations Director Broussard discussed the mechanics of the election to be held on December 3, 1975, did some general campaigning at such time, and discussed the fact that he had not secured answers to some complaints and grievances. Again, there was some airing of complaints and grievances. For the reasons previously given, it is sufficient to say that the facts reveal a continuation of implied promises of benefit violative of Section 8(a)(1) of the Act and constituting objectionable conduct as averred in Objection 1 as regards the election held on December 3, 1975. Accordingly, I conclude and find that Broussard, by such conduct, engaged in conduct violative of Section 8(a)(1) of the Act. I also find such 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conduct to be objectionable conduct, as averred in Objection I and recommend that Objection 1 be sustained. E. Alleged Grant of Benefits (Objection Issue Only) The Petitioner's Objection 2 alleged that "During the critical period, the employer, by its officers, supervisors and other agents, granted benefits to employees in order to dissuade them from supporting or assisting the petitioner." The critical time period involved is the time period from July 11, 1975, until the election held on December 3, 1975. The evidence and contentions concerning this objection issue relate to whether Respondent (1) granted employees the right to choose the method of delivery of food in the lunchroom, (2) granted employees benefits by providing tables and chairs for the lunchroom, (3) granted employees benefits by providing new purse lockers for employees, (4) granted employees benefits by promising to facilitate the finding of a job for employee Jay Palermo, (5) granted employees benefits by changing the method of overtime compensation, and (6) granted employees benefits by changing the method of work of certain "pickers" and "packers." The evidence does not establish that the Employer, during the critical time period preceding the December 3, 1975, election, granted benefits to employees in order to dissuade them from supporting or assisting the Union. The facts concerning the contended grant of benefits may be summarized as follows: 1. As to the contended grant of benefits to employees to have the right to choose the method of delivery of food in the lunchroom, the evidence does not establish a grant of benefits but reveals an implied promise of a right to choose such method. Thus, Manager Spear, during the critical period, discussed with employees the complaints concern- ing food service, the problems relating to food services from vending machines and vending trucks, and indicated that the Employer would pursue and negotiate vending services and "might eventually" give the employees an opportunity to decide between themselves which service they wanted. 2. As to the contended grant of benefits by providing new and additional tables and chairs , the evidence reveals that the Employer has had tables and chairs for the lunchroom. Prior to the event of union activities, the Employer had ordered additional chairs and tables for the lunchroom because of the expansion of the work force. Such additional chairs and tables had not been received or placed in the lunchroom as of around November 1975. During the representation election campaign, complaints concerning the need for the chairs and tables were discussed. Following this, the Employer received the tables and chairs and they were placed in the lunchroom. The Employer explained to the employees that the tables and chairs had been ordered in the past and had only been received just prior to their being placed in the lunchroom. Thus, the evidence does not establish that the installation of new tables and chairs in the lunchroom constituted a grant of benefits to dissuade employee support of the union. 3. As to the contended grant of benefits by providing new purse lockers for employees, the evidence reveals that the Employer has had purse lockers for its female employees. With an expanded work force , a need arose for additional purse lockers for employees . The evidence reveals that after union activity had commenced, after the filing of the representation petitions on July 11, 1975, and on October 20, 1975, the Employer ordered additional purse lockers for employees. In November 1975, the Employer held numerous small group meetings wherein employees voiced complaints, including complaints as to the number of available purse lockers. Later the previously ordered purse lockers were installed , and employees were told that they had been on order but stored in the warehouse awaiting installation. The general thesis of argument seems to suggest that the Petitioner contends that purse lockers were installed as a grant of benefits in answer to employee complaints at the employer-employee "grievance-complaint" meetings in November 1975. The evidence clearly reveals that the purse lockers were ordered prior to the events of November 1975. Thus, it is clear that the evidence is insufficient to reveal that the purse lockers were installed as a "grant of benefits" to dissuade union support on such theory. Nor do the facts reveal that the ordering of such purse lockers in October 1975, after the filing of the representa- tion petition on July 11, 1975, nor that the installation of the purse lockers prior to the election on December 3, 1975, constituted a grant of benefits to dissuade employee support of the union. The facts relating to the chairs and tables for the lunchroom reveal that the Employer was desirous of having adequate facilities available for an expanded work force. Considering this and the Employer's explanation to employees when the chairs, tables, and lockers were installed, it is clear that the evidence is insufficient to establish that the installation of "purse lockers" constituted a grant of benefits to dissuade employee support of the Union. 4. As to the contended grant of benefits by promising to facilitate the fording of a job for employee Jay Palermo, I am persuaded that the evidence is insufficient to establish that promise of or grant of benefits to dissuade employee support of the Union was made. The witnesses to this issue were Wilmon Collins and Broussard. The facts are based upon a composite of the credited aspects of their testimony. At one of the meetings in November 1975, conducted by Broussard for the Employer and relating to complaints and grievances and discussions thereto, employee Jay Palermo made a statement that he was moving to the university in Tucson, Arizona. Broussard told Palermo that he (Brous- sard) had just returned from Tucson. Palermo then asked if the Employer had a store in Tucson. Broussard said it did. Palermo then asked in effect if he could be transferred or get a job with the Employer in Tucson. Broussard told Palermo that he would talk to the manager there. After the group meeting, Palermo spoke to Broussard outside the meeting room. Palermo told Broussard that he wouldn't be voting in the upcoming election, that he was leaving for Tucson before the representation election to be held on December 3, 1975. Palermo asked Broussard if he thought he could really help him get a job at the Employer's store there. Broussard replied that he would give Palermo the MONTGOMERY WARD & CO. telephone number for personnel management in Tucson, that Palermo could call the manager when he got there. The facts clearly reveal an implied promise by Broussard to help Palermo secure employment at the Tucson store. The question is whether the "implied promise" was for the purpose of dissuading Palermo's support for the Union. In my opinion, the evidence is insufficient to reveal that the "implied promise" was for the purpose of dissuading Palermo's support for the Union. There is no direct evidence to reveal that the "implied promise" was unlaw- fully motivated. Nor do I find the evidence sufficient to infer such unlawful motive. There is nothing in the evidence to reveal that under ordinary circumstances Broussard would not have offered similar help to any employee leaving one store and moving to the vicinity of another store. In sum, the evidence is insufficient to reveal that Broussard's offer to help Palermo secure employment constituted a grant of benefits to an employee to dissuade employee support for the Union. 5. As to the contended grant of employee benefits by changing the method of overtime compensation, there is absolutely no evidence to reveal that the Employer changed its method of overtime compensation during the critical time period preceding the representation election held on December 3, 1975. 6. As to the contended grant of employee benefits by changing the method of work of certain "pickers" and "packers" there is absolutely no evidence to reveal that the Employer changed its method of work of the "pickers" and "packers" during the critical time period preceding the representation election held on December 3, 1975. In sum, the evidence does not support that the Employer engaged in objectionable conduct as alleged in Objection 2. Accordingly, it will be recommended that such Objection 2 be overruled.to F. Alleged Surveillance and/or Alleged Creation of Impression of Surveillance (Objection Issue Only) The Petitioner's Objection 4 alleged that "During the critical period, the employer, by its officers, supervisors and agents, engaged in surveillance of union activities and/or created the impression that union activities were being kept under surveillance by the employer." The witnesses to this issue were Wilmon Collins, Hansen, and Stocker. The issue is whether Stocker engaged in surveillance and/or created the impression of surveillance of the distribution of union literature to employees on a sidewalk. The facts are clear that the Union engaged in handbilling and distribution of union literature to employees on a sidewalk approximately 20 feet from an office near the entrance to the warehouse, that employees coming to work and receiving handbills or union literature could see through the windows of the office near the entrance door, 10 The Union (Petitioner and Charging Party) argues in effect that "grant of benefits" for an unlawful purpose occurred after the election held on December 3, 1975. Such "grant of benefits," however, was clearly not litigated as an unfair labor practice issue in this case. The cases cited by the Union as regards the question of interference with a future fair election are not pertinent since they pertain to issues litigated as unfair labor practice issues. The Union's contention that such motion of the General Counsel to 759 that such employees could see persons working, sitting, or standing in such office, that persons in such office could see the "handbilling" or "distribution" of union literature either while sitting or standing, and that the windows in said office are large windows. The facts are also clear that the office near the front of the warehouse is not Stocker's office, that Stocker, however, is normally in such office between 7 and 8 a.m., that he is working in such office at that time, that one of the reasons is that the front door is unlocked and that in a security sense he is there because he has two female employees working there. Further, the facts reveal that, on occasions other than the ones involved in the issues, Stocker from time to time observes employees coming to work. It is undisputed that, during the critical time period before the December 3, 1975, election, Operating Manager Stocker stood and observed the Union's handbilling and distribution of literature to employees. Hansen testified to the effect that she observed Stocker standing in the office and observing the handbilling and distribution of literature every day, that he normally did not do this otherwise. Collins, however, credibly testified to the effect that at times, when handbilling, etc., was not taking place, he observed Stocker watching employees coming to work from the office windows. Stocker testified credibly to the effect that on occasion he stood and did observe the handbilling and distribution of literature, that he occasionally looked out of the window as a "natural habit," and that he did not make a conscious effort to observe such handbilling or distribution of union literature. There is no evidence that Stocker took notes or made any statements to employees concerning such handbilling or distribution of union literature. Considering all of the foregoing, I am persuaded and conclude and fmd that the facts are insufficient to reveal that Stocker engaged in surveillance of employee union activities, or that Stocker created the impression that he was engaging in the surveillance of employee union activities. I note that Hansen described Stocker's standing and observing the handbilling as not being what he normally did. On the other hand, Collins testified to the effect that, on occasions unconnected with the handbilling activities, he observed Stocker observing employees com- ing to work. Hansen's testimony as to whether such conduct was normal and that it occurred every day when handbilling occurred was not persuasive. The descriptive terminology of what is normal and not normal under the circumstances is vague and conclusionary. Similarly, the broad statement that such conduct occurred every time that handbilling occurred is general in nature. I do not credit Hansen's testimony to such broad effect." Consider- ing the fact that handbilling and distribution of literature occurred at a place clearly in front of the office, where outsiders could clearly see in and insiders clearly see out, it amend the complaint should be granted and the heanng reopened so that there be full litigation of such issue is denied since the General Counsel's motion to amend the complaint was belated and untimely and has been denied because the General Counsel had full opportunity to make such amendment at time ofheanng. 11 No attempt was made to present the evidence on this issue in a manner designed to present specific occasions and as to specific dates 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD does not appear reasonable that anyone would believe that someone in the office would not on occasion look out and see such handbilling and distribution of literature. Under such circumstances, the facts in this case do not reveal that Stocker engaged in surveillance of employee union activi- ties, and the facts do not reveal that Stocker created the impression of surveillance of employee union activities. Accordingly, it will be recommended that Objection 4 be overruled.12 G. Alleged Supervisor as Observer (Objections Issue Only) The Petitioner alleged in Objection 5 that "On the date of the election, the employer interfered with employee free choice by designating a supervisor as its election observer." It is undisputed that Barry Hufsey occupied a position described as a group head, that Barry Hufsey served as a company observer for the representation election held on December 3, 1975, that some other "group heads" voted in said election without challenge, and that some other "group heads' " right to vote was challenged and that they voted challenged ballots. There is no evidence to reveal whether prior to the election the parties were aware of the individuals who were to serve as observers for the respective parties. Nor is there any evidence to reveal that the Petitioner challenged the use of Hufsey as an observer excepting as might be indicated by the challenge to his vote on the basis of his alleged supervisory status. The only facts of any significance for consideration of whether Hufsey is a supervisor or not concern (1) whether he responsibly directs work and makes assignments of a nonroutine manner which requires therein an exercise of independent judgment, and (2) whether he reprimands employees. The facts are clear that Hufsey is known as a group head, that his group consists of four other employees, that he makes $3.56 per hour, that he makes 30 cents per hour more than the next highest paid employee in his group, that he makes 45 cents per hour more than the lowest paid employee in his group. The facts are clear that, except for the questions to be discussed herein, Hufsey has none of the responsibilities or duties of a supervisor, and his terms and conditions of employment are similar to the terms and conditions of employment of other employees in his group. As to his duties, Hufsey was told, when he assumed such duties or thereafter, that he was to hand out orders, make sure there was stock to pick and that the stock was in the correct bins, and, when there weren't any problems, that he had better be picking. Assignment of Work There is no issue that Hufsey assigns work. The issue is whether such assignment of work is routine or nonroutine in nature and whether such judgment as used is essentially independent in nature. Hufsey gets orders to be filled from the front office and assigns such orders to the "pickers" for picking. The facts reveal that the orders are essentially similar in nature, that the orders to be picked are listed on sheets which include a number of orders to be picked. Although the orders to be picked are essentially similar in nature , some of the orders to be picked concern guns and related type of items. As to some of the other orders to be picked, some items, such as boots, are heavier than other items. Hufsey testified to the effect that he took the order sheets from the front office, that the order sheets have 26 lines on a sheet, that each line represents an order, that he counts such lines and orders and divides the work so that each picker has about 200 orders to do for half a day's work, that in doing so each picker gets about 8 or 9 sheets containing the various orders. The facts are clear that orders relating to the "gun cage" were given to the employee assigned to the "gun cage," and that an employee assigned to the "gun cage" was given the use of a cart and that such employee received orders like "snow boots" because they were heavier. It appears that the employee assigned to the "gun cage" was male and that some of the other pickers were female. Orders, excepting relating to the gun cage and snow boots, were divided and given out on a "first come" basis. Considering all of the foregoing and all of the facts, the facts reveal that Hufsey's duties and responsibilities in the assignment of work was routine in nature and involved the use of judgment in a minimal sense and not of an independent nature. As to the work otherwise, Hufsey trained new employees, answered routine questions, checked on supplies and stock, personally helped employees as to lifting stock, etc., told employees about errors reported to him, and expressed his opinion in answer to employee questions as to how they are doing. The sum of the facts reveals that Hufsey's direction of work is routine in nature and does not reveal the exercise of independent judgment. Nor do the facts reveal that Hufsey has the power to reprimand employees. Rather, the facts reveal that any disciplinary power or reprimanding power resides in Hufsey's supervisor, Batista. Considering all of the foregoing and all of the facts, the preponderance of the facts fails to establish that Hufsey is a supervisor within the meaning of the Act. Accordingly, it will be recommended that Objection 5 be overruled. H. Threat of Reprisals (Objections Issue Only) The Petitioner's Objection 7 alleged that "During the critical period, the employer by its officers, supervisors and other agents, threatened employees with reprisals if they joined, supported or assisted the petitioner." I find no credible evidence to support this objection. The Petitioner's brief only alludes to evidence relating to Broussard's statements to employees on November 19, 20, and 28 and December 1, 1975, as bearing on this issue. Such evidence alluded to relating to negotiations, that negotiations would take a long time, that employees would receive the same benefits because they compared with an existing unionized plant, and that employees would thus 12 G C Murphy Company, 216 NLRB 785 (1975). MONTGOMERY WARD & CO. 761 lose what they paid in dues, does not constitute a threat of reprisal. Rather, at most, as the charging party suggests, the evidence might support a "threat of futility." However, neither the complaint nor the objections set forth an issue of "threat of futility." I would note further that the General Counsel's brief alludes to various statements in testimony as to what Spear, at some point of time between November 20 and 28, 1975, said to employees in a meeting. Such evidence, however, did not touch on the issues raised by the General Counsel's pleadings. The only evidence alluded to which appeared to touch any issue concerned an issue in the objections and was the testimony of Shirley Collins. At one point Collins testified, after refreshment by her affidavit, that Spear stated that if they voted for the Union, they would be on their own, and if they voted no, they would have Fred Spear in their corner. Direct and cross-examination of Collins revealed that her testimony on this point was unreliable. I do not credit her testimony on this point. In sum, I find no evidence to support Petitioner's Objection 7. Accordingly, it will be recommended that such objection be overruled. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. The Charging Party requests an order requiring the Respondent to post, at each of its facilities within a 75-mile radius of the city of Chicago, a notice stating that it will not solicit employee grievances or promise to act upon them as a device for defeating union representation. The Charging Party argues that the Company's past record warrants an inference that repeated violations of the same type will occur at other facilities when there are union organization- al drives. It is true that, in the cases cited by the Charging Party, the Board has found the Respondent guilty of unfair labor practices. Thus, in Montgomery Ward & Co, Incorporated, 225 NLRB 112 (1976), the Board found the Respondent to have engaged in unfair labor practices at Posen, Illinois. Such unfair labor practices were similar to the ones involved herein and occurred in mid-1975. It is clear in this case that the Respondent has modified its conduct to some extent as to the usage of group meetings and solicitation of grievances. The Board also in a case reported at 222 NLRB 965 (1976) found the Respondent to have committed unfair labor practices at Uniontown, Pennsylvania. Such conduct was not similar to the conduct herein excepting as to unlawful interrogation. The events in the Uniontown, Pennsylvania, case occurred in early 1975. The Board also found, in a case reported in 187 NLRB 956 (1971), the Respondent to have committed unfair labor practices in Longview, Texas. Such unfair labor practices occurred in 1968 and 1969. The unfair labor practices involved herein are not so flagrant as to normally compel the issuance of a broad order. In my opinion, the type of remedy under such circumstances is discretionary. Under such circumstances, since Respondent shows some recogni- tion of Board law in its unsuccessful attempt to modify its approach, Respondent very well may learn the lesson and comply fully with the remedy involved herein and conduct itself otherwise in a lawful manner. Accordingly, I shall not issue a broad order as requested in this case. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Montgomery Ward & Co., Incorporated, the Re- spondent, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Warehouse, Mail Order, Office, Technical and Professional Employees Union, Local No. 743, affiliated with the International Brotherhood of Teamsters, Chauff- eurs, Warehousemen and Helpers of America, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor practices proscribed by Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. As alleged in Objection 1, during the critical period (July 11, 1975, to December 3, 1975) the Employer, by its officers, supervisors, and other agents, made promises of benefits to employees to dissuade them from supporting or assisting the petitioner. 6. The facts do not establish, as alleged in Objection 2, that- during the critical period (July 11, 1975, to December 3, 1975), the Employer, by its officers, supervi- sors, and other agents, granted benefits to employees in order to dissuade them from supporting or assisting the petitioner. 7. As alleged in Objection 3, during the critical period (July 11, 1975, to December 3, 1975), the Employer, by its officers, supervisors, and agents, coercively interrogated employees concerning their union wishes and desires. 8. The facts do not establish, as alleged in Objection 4, that during the critical period (July 11, 1975 to December 3, 1975), the Employer, by its officers, supervisors, and agents, engaged in surveillance of union activities and/or created the impression that union activities were being kept under surveillance by the Employer. 9. The facts do not establish, as alleged in Objection 5, that on the date of the election (December 3, 1975), the Employer interfered with employee free choice by desig- nating a supervisor as its election observer. 10. The facts do not establish that during the critical period (July 11, 1975 to December 3, 1975), the Employer, by its officers, supervisors, and other agents, threatened 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees with reprisals if they joined, supported, or assisted the petitioner. 11. The facts establish, as set forth in Objections 1 and 3 (referred to in Conclusions of Law 5 and 7), that the Employer engaged in conduct which interfered with employees' exercising a free and untrammeled choice in the representation election held in Case 13-RC-13757 on December 3, 1975. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) and Section 9 of the Act, I hereby issue the following recommended: ORDER 13 The Respondent, Montgomery Ward & Co., Incorporat- ed, Chicago, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Soliciting employee grievances or complaints and in connection therewith promising employees to act favorably upon such grievances or complaints if the employees refrain from supporting or engaging in activities on behalf of the Union. (b) In any like manner interfering with , restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act except to the extent that such rights may be affected by lawful agreements in accord with Section 8(a)(3) of the Act. " In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 14 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 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Post at Respondent's warehouse facility at Bensen- ville, Illinois, copies of the attached notice marked "Appendix." 14 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by Respondent's representatives, shall be posted by it immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter , in conspi- cuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the allegations of unlawful conduct not specifically found to be violative herein be dismissed. IT IS FURTHER ORDERED in Case 13-RC-13757 that Petitioner's Objections 1 and 3 to the election held on December 3, 1975, be sustained, that Petitioner's Objec- tions 2, 4, 5, and 7 to said election be overruled, that said election be set aside, and that said case be remanded to the Regional Director for Region 13 for the purpose of conducting a new election in the appropriate bargaining unit involved at such time that he deems appropriate.15 [Direction of Second Election and Excelsior footnote omitted from publication.] to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." is The appropriate collective-bargaining unit is as follows: All warehouse employees including packing employees , order pickers, markers, stock employees, shipping clerks, receiving clerks, invoice record clerks, merchan- dise clerks, inforex operators and timekeepers employed by the Employer at its facility now located at 1010 Foster Avenue Bensenville, Illinois, but excluding office clerical employees , guards, and supervisors as defined in the Act.