Montgomery Ward & Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Montgomery Ward & Co., Incorporated and Amal- gamated Food Employees Union Local 590, af- filiated with United Food and Commercial Workers International Union, AFL-CIO. Case 6-CA- 12565 November 4, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBI RS JENKINS ANt) PENELLO On July 22, 1980, Administrative Law Judge Walter H. Maloney, Jr., issued the attached Deci- sion in this proceeding. Thereafter, Respondent filed execeptions and a supporting 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 brief and has decided to affirm the rulings, findings, and conclusions' of the Administrative Law Judge, except as modified herein, and to adopt his recom- mended Order. The Administrative Law Judge found that a card majority of Respondent's employees in the appro- priate unit had designated the Union as their bar- gaining representative.s He further found that Re- spondent had committed numerous independent unfair labor practices during the course of the Union's organizing campaign. Accordingly, he con- cluded that Respondent's refusal to recognize and bargain with the Union violated Section 8(a)(5) and (1) of the Act, and recommended that a remedial bargaining order be issued. Respondent has filed exceptions only to the finding that it unlawfully re- fused to bargain with the Union. The Administrative Law Judge found, and we agree, that there were 74 employees in the unit when the Union demanded recognition on July 9, 1979,3 and that 41 employees signed authorization cards. Respondent challenged the validity of five cards on the ground that the signers had been told the cards would be used for the sole purpose of ob- taining an election. The Administrative Law Judge specifically overruled the challenges to two of the i We disavow any reliance upon the Administrative L.aw Judge' dis- cussion of Joy Silk Mill, Inc. v. N.I.R.. 185 F 2d 732 (DC Cir. 1950), found in sec, Ill par 3. of his Decision. Member Penello finds it unnecessary to rely on J J. :N berrrv Co., 249 NLRB 991 (1980), cited in sec Ill. par 4, of he Administrative Law Judge's Decision, a case in w hich he dissented 2 The parties agree that the unit appropriate for collective bargaining consists of: All full-lime and regular part-time employees employed by Respindent at its Greensburg, Pennsylvania, Credit Service Center. ex- cluding guards, professional employlesc, and upervisors tllhill the mcan- ing of the Act. a All dates hereinafter are in 1979, unless otherwise indicated cards, but counted the remaining three without reaching the merits, because Respondent did not object when they were admitted into evidence. In- asmuch as 38 cards are sufficient to establish the Union's majority, the Administrative Law Judge found it unnecessary to consider two cards signed the day after the Union demanded recognition. Ac- cordingly, the Administrative Law Judge conclud- ed that the Union's majority on July 9 consisted of 39 of the 74 unit employees. Respondent excepts, inter alia, to the Administra- tive Law Judge's refusal to consider on the merits whether three of the five cards it questioned were valid. We find, for the reasons set forth below, that, although the Administrative Law Judge should have ruled on the validity of the three cards in question, his ultimate conclusion that the Union had attained majority status is correct. At the hearing, counsel for the General Counsel introduced into evidence, without objection, the union authorization cards of employees Deborah Ann Wunderly, Cynthia Ghrist, and Pamela Corn. The Administrative Law Judge ruled that, by fail- ing at the time to raise all objections it may have had, Respondent waived the right thereafter to challenge the validity of these cards.4 A union authorization card need only be identi- fied, authenticated, and shown to be facially rele- vant before an administrative law judge may accept it into evidence.' Should a card's authentic- ity be in issue, the moving party may clarify its po- sition and expand the record with respect to the card's admissibility by asking questions in voir dire. Since inquiry into the circumstances of the solicita- tion itself goes to the validity of the card, thus ex- ceeding the narrow scope of voir dire, it follows that the failure to object to the admission of a card into evidence waives only the right to question its authenticity at a later time. The issue of card validity is timely raised by, inter alia, cross-examination of the authenticating witness or the production of the signer's direct tes- timony. Respondent introduced the testimony of Wunderly, Ghrist, and Corn as part of its case in 4 In o finding, the Administrative Lass Judge relied ,on P/grm Le Insurance Cmpani. 249 NLRB 1228 (1980) In Pil/grim Liei, the Board affirmed without comment the Administrative Las; Judge ho in an analogous situation had stated All designaled cards were recel:ed into eidence without objection Normally. this fact alone ould preclude the Respondent from rais- ing an issue of tainted cards at a later date. Notwihstanding the Administrative Las Judge's comments in Pilgrim I.i, however, he then ent on to rule on the various contentions raised to the cards there. Hence, his statement quoted above was in he nature of dictun Moreover the quoted excerpt from Pilgrim Life s hereby overruled toi Ihe extent that it is inconsistent with oday's Decision s See Vea York Paient -lids Inc d/b/a (;ardian Ambulunce Service and .4mericn Medicaul Supplies 228 N I.R 1127, 129, fi 6 (1977) 253 NLRB No. 23 196 M()NT()OM-RY WVARD & C() chief, in part to show that the statements made during the solicitation of these employees' cards rendered them valid, and, therefore, unavailable for the purpose of establishing a card majority. Coun- sel for the General Counsel cross-examined each witness and later discussed their testimony, along with other evidence relating to the solicitation of their respective cards, in her brief. Since the valid- ity of the cards was questioned in a timely fashion which afforded sufficient notice to all parties that the issue was in dispute and, since the issue was fully litigated and briefed by both sides, the Ad- ministrative Law Judge erred by refusing to con- sider Respondent's contention that the cards were invalid. Accordingly, we will consider whether the authorization cards signed by Wunderly, Ghrist, and Corn are valid. We recently set forth the standards by which we determined the validity of authorization cards as follows: 6 In N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969), the Supreme Court approved Board law on determining the validity or inva- lidity of authorization cards, as set forth in Cumberland Shoe Corporation, 144 NLRB 1268 (1963), enfd. 351 F.2d 917 (6th Cir. 1965), and reaffirmed in Levi Strauss & Co., 172 NLRB 732 (1968). The Court described Board law in the following terms (395 U.S. at 584): Under the Cumberland Shoe doctrine, if the card itself is unambiguous (i.e., states on its face that the signer authorizes the Union to represent the employees for collective bar- gaining purposes and not to seek an elec- tion), it will be counted unless it is proved that the employee was told that the card was to be used soley for the purpose of ob- taining an election. With respect to employees who sign cards upon alleged misrepresentations as to their purpose, the Court said, "[E]mployees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disre- gard and forget the language above his signa- ture." (395 U.S. at 606.) The Court cautioned the Board not to apply the Cumberland Shoe rule mechanically, and quoted with approval the Board's language in Levi Strauss, supra, that "It is not the use or nonuse of certain key or 'magic' words that is controlling, but whether or not the totality of circumstances surrounding the card solicitation is such as to KAevtone Pretzel Ba erv. Inc.. 242 NlRl 492, 491 ( I61793 add up to an assurance to the card signer that his card will be used for no purpose other than to help get an election." (395 U.S. at fn. 27.) Deborah Ann IWunderly testified that another employee, Joanne Miller, handed her the card and explained that, in addition to needing the cards for an election, it would be necessary to have a major- ity of cards signed by the employees in the office before the union representative could come in and speak with management. She admitted having read the card and having discussed it with cosworkers as well as her husband. Craig Bennie, an employee who solicited Cyn- thia Ghrist's card, testified that he informed Ghrist that the card "would be used for recognition repre- sentation,," and that she should "read it." When asked whether anyone had told her what the card was for, Ghrist could not recall having spoken with Bennie, but she did remember speaking to em- ployee Marge Barnhart who told her they were "trying to get a majority of signatures to have the union representative come into the office and ask for recognition" and that, "if the company would not recognize the union by just the union repre- sentative coming in that they would then ask for an election." The language on tht cards clearly and unambi- guously indicated that the signers authorized the Union to represent them for collective-bargaining purposes. The record is devoid of any evidence which would tend to show that a clear and deliber- ate attempt had been made to direct either Wun- derly or Ghrist to disregard the language on the cards, or otherwise to assure either one that her card would be used exclusively for the purpose of securing an election. Thus, we conclude that the cards signed by Deborah Ann Wunderly and Cyn- thia Ghrist are valid and should be counted. 7 Since these two cards alone are sufficent to establish that a majority, 38 of 74 unit employees, designated the Union as its bargaining representative, we find it unnecessary to pass on the validity of the card signed by Pamela Corn. Accordinly, we adopt the Administrative Law Judge's finding tat, on July 9, the Union had at- tained majority status, and conclude that Respond- ent violated Section 8(a)(5) and (1) of the Act by refusing to recognize the Union and that issuance of a remedial bargaining order is warranted. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- Jr. .%ftnul, t urinl Dil m. Dre , lndutri,. Inc, 24 N RH 33 ('8O). Kevtln Pr,,tzci B,,l A rr. m, upr, 1" 7 I)IACISl()NN ()OF NA I I()NAI IAB()R Rl.A I I)NS ()ARI) lations oard adopts as its Order the recommended Order of the Administrative Iaw Judge anld hereby orders that the Respondent, Montgomery Ward & Co., Incorporated, CGreensburg, ennsyl- vania, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended ()rder. DECISION Sr x I1 N [N I (1 'II: C SI WtAI i-R 1H. MAI ()NI't, JR.. Adlinistrative luaw Judge. ['his case came on for hearing before ric at 'itlis burgh, P'ennsylvania, upon an unftir labor practice cori- plaint, ] issued by the Board's Regional Director for Region 6 and later amended, which alleges that Re- spondent Monigomery Ward & Co., Inc.,2 (Ward's) vio- lalted Section 8(a)(l) (3), and (5) of the Act. More par- ticularly, the complaint, as amended, alleges that the Re- spondent coercively interrogated employees concerning their union activities and the union activities of other em- ployees, created in the minds of employees the impres- sioni that their union activities were the subject of conm- panly surveillance, promulgated overly hroad no-solicita- tion and no-distribution rules, threatened employees with unstated reprisals and with more onerous working condi- tions, closure of the office, and loss of promotions if they supported the union, solicited grievances with thle im- plied promise that such grievances would be remedied, told employees that it would be futile for them to select the Union as their bargaining agent. aind granted massive wage increases throughout the bargaining unit inmmedi- ately aftel the Union made a demand for recognition in order to undermine the organizing effort. The complaint also alleges that the Respondent violated Section 8(a)(l; and (3) of the Act by giving union activist Joanne Miller an unfavorable personnel evaluation. The General Coun- sel seeks a so-called Givstel a remedy whereby the Re- spondent would be required to bargain collectively with the Union as the representative of the employees at its Greensburg Pennsylvania, Credit Service Center (CSC). i I hc principal dtckel nlitries in tis case are ias fllovs Charge filed h Aalgalriated IFood E(lmployce. tUnion I ocal No 59(). affiliated ith United I'ood and Commercial WVlrkers lllerrllational ULnion,. AFt -CI() (hCereil called the lionli) against Iht Respondent on Jlly l, 1979, llld aileded chalges iled onl Seplemnlbcr 10. 179; con plaill issued hy the Regional )irect or fl Region on October 30(), 1979, anld arlenditd comnplaint Issued on Noveniber 28, 1979: Respo(rdenl' anls\wer to rigillal coirlplaill filed onl Noseniber , 1979. and awel to anllildlCd cilllplirlt fled onrl I)tecilmbir 10, 179; hearing held in itts- hiurghi, Plenlsnylvaniiia, oin Mlrch 4, 5 and 6 and Mas I, 1980 rief filed by the (ieneral C(ulnsel anld itie Respndenil o r htefore June 9. 198( 'I lie Respondcel adrnils, aid I find, that it is an Illinois crporation wshich rin;iitain', an office and place of husiness il (licnshurg. 'clnrsyl- · aia, where it is engaged i the retail sale of merchandise. I)uring Ihl 12 -nionth period preccedinrg Jul ) , 19t79, the Respl,.dcnt desricd grlos renucs ronl tie aho, c-described husiness II r uxces of 55(X),[(X) anld purchaLt'd aIt Its (rCenhburg, IelniIsIarnia, place of busines direcily from poinllts .ad places Ilecated otside the Ciilltotisealth o1f I'cnnrsyla- ii. goods and erchanllldlise valiued i excess of $50,()x Acclrdinrgly, tie Respolderlt i al ci pliiyer engaged iII commerce vllthil the nlcallrrg f Sec 2(21. 6r atid (7) of the Act lhi Union is .i labor organlauiin wtilhin the rticnlrlig iof Sce 2(5) o1' tlhe Act '' L. t v (i{ol Pac(Ain ( o I., 35 . S 575 (I'969) 'lhc Respondeint entered a forilmal denial of any inde- pendent violations of Sectionl 8(a)(I) of the Act hut made little or ino defense as to most of them at the hearing. It clainis that a unit-wide wage increase which was granted nri July 1, 1979, was made pursuant to an area wage survecy in order to malinitail its wgce rates at a level com- petitie with other businesses in the Greenlsburg area. It denies that the Union was ever the majority representa- tive of its Credit Service Center employees and alleges that certain authorization cards upon wvhich the Union relies to establish miajority status were procured through misrepresentations vhich violated the Board's Cumbenhr- land Sho rule. 4 he Respondent also claims that ilhe cir- culation and prescntation to the Union and the Regional O()ffiec of a petition which was assertedly signed by unit employees during the recess which took place during the hearing of this case is evidence that an election and not a bargaining order is a appropriate remedy herein. Upon these contentions the issues herein were drawn.' I I IlF UNF tIR I ABOR P'RA(11CIS AI I (.I-il) Ward's operates a Credit Service Center at the G(reeni- gate Mall i Greensburg, Pennsylvania, some thirty miles east of Pittsburgh. The Center is located in the same gen- eral vicinity as Ward's retail outlet, but it is an entirely separate operation and has a completely different mis- sion. At the Credit Service Center Ward's employs about 75 clerical employees hose job is to dun nonpaying or slow-paying cus'omers and to collect overdue accounts. Some 160,000 accounts of customers living in estern Pennsylvania and parts of West Virginia and Ohio are in- stantly retrievable oin cathode ray tubes (CRT's) situated on the desks of CSC employees. Their job is to phone these customers and to urge prompt payment of bills which may be delinquent anywhere from 1 to 8 months. The Center is one of several throughout the United States and is operated under the general supervision of Credit Manager Brian D. King, who reports to R. W. Anderson, Ward's group credit manager in Albany, New York. The Union began to become interested in representing the employees at the Greensburg CSC in late May 1979. when two CSC employees, Joanne Miller and Karen Shank. phoned International Representative George Nes- tler to get information concerning organization. Nestler made a few home visits in late May and during the rmonth of June. He set up a meeting of employees at the Sheraton Inn in Greensburg on July 2 and met with about a dozen people who were in attendance. After dis- cussing the benefits of unionization, the rights of employ- ees to organize, and other matters pertaining to the cam- paign, Nestler collected employee signatures on 12 au- thorization cards and distributed additional cards for use by the employees in soliciting support from others. Nes- tler told them that a majority of employees would have to sign cards in order to permit him to go to the Compa- ' ('um er/arlnd Shote ('orporuaoin, 144 N R 1268, elfd. 51 2d 917 (6h ir 196h5) ' ()n June i , 198(, te (i.neral Counsel iled a tition to correct the traisctipt i crtain particulars the ulolioll wis iiopposed arld is ierchb graitied M()NTGOMERY WARI) & C(). ny to demand recogition and added that he preferred, if possible, to have 7() percent of the employees sign cards before doing so. He also informed listeners that lhe would be at the home of Joanne Miller, which is located close to the CSC office, on July 6 in order to pick up signed cards. In fact, Nestler receied ;ill of tihe signed cards, other than those actually executed in his presence, from Miller. Between July 2 and Jul 10. Nestler obtained a total of 41 cards and submitted them to the Regional Office in Pittshurgh on July 13 when he filed a rcpresen- tation petition (Case 6-RC 3538). Nestler picked up cards at the Miller home on July 6 and again during the lunch hour on JuJy 9. On the after- noon of July 9 he went to the office of the CSC and spoke to King and to Anderson. The latter happened to be in town from Albany on that occasion. Nestler told Anderson that he represented a majority of the CSC em- ployees and demanded recoenition. He also presented King with a typewritten letter which read, in part, that: Representatives of Local 590 visited your office this afternoon for the purpose of personally deliver- ing the following request. Your employees have been responding most cooperatively in authorizing our Union to act as their representative for the purpose of engaging in collective bargaining with you in their behalf as to their wages, hours, and working conditions. We further request that you consider demand for recognition at this time. The letter was accompanied by a recognition agree- ment form by terms of which the Employer would agree to recognize Local 590 as the sole and exclusive bargain- ing agent for all the CSC office employees, except guards, supervisors, and confidential employees. Ander- son refused to look at the proffered documents and told Nestler to contact Gary H. Feinberg, the Respondent's regional labor relations manager in Baltimore. He gave Nestler Feinberg's address. On the same day, Nestler wrote Feinberg and sent along copies of the request for recognition and the letter to King which he had submitted to the Company at Greensburg. On July 10, Feinberg replied. In his letter, Feinberg disagreed with the unit description. 6 expressed a doubt of the Union's majority status, and insisted that the Union file a representation petition. As noted above, on July 13 the Union filed a petition for an election in the CSC unit. In the afternoon of July 6, a notice was posted on the bulletin board at the CSC that a party was to be held the following Tuesday evening at Banjo Louie's, a nearby beer and pizza emporium, to celebrate the fact that the Greensburg CSC had been rated first among Ward's sev- eral credit service centers. According to all accounts, it was an excellent party and everyone who attended had a good time. Moreover, this was the first time in the histo- ry of the CSC that a unitwide party had ever been held. 6 The unit which the Resplonldent admitted in its arscr 11o he ppro- priate is almost indistinguishable from the all-lo-. all unilt requested hs Nestler in his demands upon he Respondent in July 19)7 Normally the employees would get together with the retail store employees for Christmas parties and, on( occa- sion, individual group supervisors hantve taken their re- spective sections out to lunch to express gratitude for a good monthly or annual section performance rating, but nothing on this scale had eer taken place before in the mtnltorv of those who testified. One facet of this affair ,,hich seemed noteworthy to those who described this party was the fact that the Company paid for mixed drinks its well as beer and pizza. ()n the following day, Anderson and King held a meeting of all CSC employees in the training room at the CSC office. The employees were told that they would be getting additional increases over and above the raises which they had received in April Anderson said that group supervisors would inform each employee of the amount of her raise. The data placed in the record from the Respondent's records indicates that no standard monetary amount or percentage increase was given to employees on this oc- casion. In the past, merit increases, coming normally at 6-month intervals on the occasion of an employee's per- firmance review, would amount to 5 percent or 1() per- cent. On some occasions, these increases were given in actual dollar-and-cent amounts and on those occasions came to about 15 cents per hour. The July II increases were made retroactive to the beginning of the pay period and ranged from 7.5 percent to about 40 percent, or from 25 cents per hour to as much as $1.49 per hour. Several employees testified that the July I increases were the largest they had ever received as Ward's em- ployees. Of the 74 employees in the unit, 16 received in- creases of between 50 cents and $1 per hour while 28 re- ceived increases in excess of $1 per hour. A memo dated October 5. 1979, from Anderson to Fcinberg summarized the aerages of the increases for various job classifications and compared them with the amounts given out three months previously. It should be noted that the July averages noted in the memo were the product of widely varying individual raises. The memo stated, in pertinent part: I have listed, by job category, the July comparison percent after the increases we have given ersus the April comparison. July Coam- parison Job Category after in- creases New accounts Secretary Film Look-Up Typist Add-On Adjustment Collection 12.0 %, 10.0 92 3 1 10 7 23.8 22.3 .4pril V. I. Y 15.2% 18.8 t9.3 104 159 13.3 17.2 In its effort to persuade employees to abandon their support of the Union, the Respondent held several meet- EI)ICISIONS () NAIIONAI. LABO()R RELATIONS BOARD ings with them between July 11 and September 13, the date on which the election ,as originally scheduled to take place.7 On several occasions within this same gener- al time frame, individual supervisors also spoke with em- ployees with the same purpose in mind, For the most part, the employee versions of these meetings and con- versations is uncontroverted in the record." Miller had long been on difficult terms with her super- visor Rosalie Tantlinger. The two simply did not get along because of personality differences. On July 1, As- sistant CSC Manager Stephen Vargosko called Miller in his office and asked her whether she and Tantlinger were getting along. He mentioned that he had heard from Area Credit Manager Stephen Arendas at the party at Banjo Louie's which had taken place on the previous evening that she had wanted to be transferred from Tantlinger's section. Miller replied that they were getting along pretty well at that time but that she was irritated because Tantlinger had placed a comment in her person- nel file that she was guilty of excessive talking and of making personal phone calls on company time. Vargosko told her that he had checked her personnel file and that there was nothing in it concerning personal phone calls. About this same point in time, Supervisor Karen Wowak had a private meeting with employer Martha Dragovich in the course of which she asked Dragovich how the latter felt about the Union. Dragovich said she did not know and asked Wowak if the CSC would close if the Union came in. Wowak replied that it would take only 2 days to put all the accounts at Greensburg on a CRT and transfer them to Baltimore. On July 19, Tant- linger approached Miller's desk and asked her what she was talking about. Miller simply replied that she was talking to herself. Tantlinger's reply was that Miller had been doing more around the office lately than merely talking to herself. On Sunday, July 23, the Union held a general meeting at the Sheraton-Greensburg Motel which was attended by a substantial number of CSC employees. Various as- pects of the organizing campaign were discussed. On the following day, Miller had another conversation with Vargosko in Vargosko's office. He spoke to her about a rumor she had allegedly been spreading about a job ap- plication at Volkswagon which had been made by Ward's employee Bob Harbaugh. She denied circulating any rumors concerning Harbaugh. Vargosko also told her that other employees had complained to him that 7 On September 10, 1979. the Union filed an 8(a)(1), (3), and (5) charge As a result of the filing of a refusal-ol-hargain charge, the proc- essing of the petition for an election was. under the Board's procedure. automatically blocked and no election was held On November I, 1979, the Union withdrew its representation petition. This withdrawal was con- current with the issuance of the complain herein alleging an unlawful re- fusal to bargain on the part of the Respondent " Despite the fact that the names of King arid Anderson, the principal supervisors over the CSC. were prominently mentioned ill the teslimony in this case, they were not summoned by he Reslpondent to testify Ihe same holds true of Area Credit Managers Stephen Arendas. Stephet Var- gosko, Jack Bauer, and Regional Labor Relations Director Finberg. Under well-established rules of e\ idence, I will assume that, if these indi- viduals had been summoned to testify, their testimony would tend to sup- port the allegations contained in the amended complaint Ihe only man- agemenl personnel who testified in this case were First-l ine Supersisors Karen Wowak and Rosalie Tantlinger. Miller had beeni calling them on the office phone to talk about the Union. Miller also denied this charge. He then asked her why she would let her difficulties with Tant- linger prompt her to become a union supporter, especial- ly in view of the fact that her husband was in manage- ment. He also stated that if he thought her feelings toward Tantlinger might turn her into a union supporter, he would have moved her out of Tantlinger's section. Miller replied that she had requested a transfer long ago but her request had been denied. Vargosko then asked Miller what had caused employ- ee Pam Kent to "go the other way," observing that he and Kent had always gotten along. He said he could always tell who was prounion and mentioned that Ivalyn "Sis" Wells was in that category. He said Wells had worked at just about every job in the office and could not handle any of them so she was prounion because she was afraid. Miller told Vargosko that she was aware that he knew that she had held a union meeting at her house. She also said that Harbaugh, whose complaint had initiated this conversation, had signed a union card. Vargosko was surprised to receive this information. She recounted that she and Harbaugh had engaged in an argument at the Holiday Inn during which time Miller told him that she hoped that the Union would display this card to manage- ment at the top of the pile. Vargosko then told Miller that he did not want her to talk about the Union at all during worktime. As far as he was concerned she could talk about it during lunchtime or at breaktime and she could get up in the lunch room and shout union if she wished, but he did not want her to do so during working hours. He reiterated that people were coming into his office to complain about her union campaigning. Miller challenged him to bring them in so that she could discuss their changes face to face. He de- clined to do so, saying that the employees in question were afraid. Miller's reply was that they were afraid be- cause they were lying. Miller's normal 6-month evaluation was scheduled for July 5. t did not take place until July 26.9 In the normal course of an evaluation at the CSC, the employee is given a form containing a listing of various employment traits and is asked to evaluate herself with respect to each of these traits. Then the supervisor checks on the form whether she agrees with the employee's self-evalua- tion, adds certain evaluations as to matters which are left to the supervisor's sole discretion, and then awards a composite rating such as satisfactory, above average, or needs improvement. The form contains certain detailed statistical reports on the individual's performance for each of the months involved in the evaluation, together with comparable figures for her section and for the entire CSC. These statistics are wholly objective and are obtained from the returns on the employee's collection efforts and the efforts of her fellow employees. There is also a place on the form for narrative comments by the ! Apparently latenless in holding personnel evaluations is not unusual Miller's evaluation fir tihe last 6 months of 1978 did not occur until May 1q79 Miller testified that the iterview tiook place on Jul 2 Apparent- ly the Iorni was dated the following day 2(X} M()NTi(OMIRY WARD & CO.) supervisor. Miller told Tantlinger on this occasion that she disagreed with most of her evaluations so she refused to sign it. During the course of the interview which is a part of the evaluation process, Miller asked Tantlinger why Arendas appeared to be mad at her. Tantlinger suggested that she should ask him herself, adding that he was upset because he thought that Miller had something to do with the Union. Miller asked whether he had any proof and was told that he did not. She then said that Vargosko should not assume anything. Tantlinger then asked her why, if she did not have anything to do with the Union, would she have the employees come over to her house for a union meeting. Miller replied that she did so merely at George Nestler's request because her house was clos- est to the office, stating also that all that Nestler did at the meeting was to give the employees a copy of their rights. When asked, "What rights?", Miller replied that it was just a piece of paper. 10 Tantlinger then told Miller that Anderson and other supervisors had discussed her activity at a meeting and had come to the conclusion that Miller was the one who had started the union orga- nizing campaign. In mid-September, Miller and Tantlinger had another conversation concerning the Union. This conversation took place at Miller's desk. Tantlinger observed that the Union must have acquired considerable employee sup- port for it to be coming to a vote. Miller asked Tant- linger why she was singling her out for questioning. Tantlinger said that she was not singling her our and told her that she was in the process of talking with all of the employees. She then asked Miller what her problems were and Miller replied that she did not like to be repri- manded for excessive talking when everyone in the office talked a lot. She also complained about various su- pervisors. She noted that the credit manager, King, had never given the employees a rough time but he went on to complain about unspecified changes which were taking place in the office. Tantlinger suggested that she bring her complaints to Anderson, but Miller replied that if Anderson wanted to talk to her, he could come to see her. On July 23, in the course of the semi-annual personnel evaluation by her supervisor, Arendas, Karen Shank was asked by Arendas, "I don't understand why you girls want a union in the office." She replied that the money was not the greatest, especially with inflation. Arendas told her that the supervisors felt that the organizing cam- paign was basically a reflection on them. She assured him that it was not and that the real problem was money. Arendas told her that if the Union came into the office, things would change drastically. Limitations on break times and lunch hours would be strictly observed, employees would not be allowed to chitchat with their friends, and the office atmosphere would be much stricter. Shank said that she had never had any contact with unions before and that she wanted to hear both sides of the story before making up her mind. Arendas observed i0 The reference here is to a pamphlet prepared by the Union which outlines the rights of employees guaranteed hy Secs 7 and 8 of the Act that, if money was the gripe, then employees were making good money because of the recent general pay increase. Shank agreed but stated that she felt like she had been bribed. Arendas said that he knew that she and Miller were good friends and stated that "you can't tell me that she isn't trying to sway you." Shank protested that she had a mind of her own. During the course of this discussion, Arendas told her that she would not be able to talk directly with supervisors if a union came into the office and that she would have to approach them through shop stewards. On July 27, Arendas stated to Shank and employee Cindy Ghrist during a lunch time conversation that he did not know which of them were for or against the Union but warned them that, if the Union came into the office, they would not be able to sit and talk (on compa- ny time) for half an hour. Shank replied that she had not been talking for more than 5 minutes and that she started doing so only after the other girls had gotten up to punch out for lunch. On another occasion during the summer of 1979., Shank had occasion to talk with Arendas concerning a business matter when he stated that he really felt sorry for Shank. He asked her what she would do if the office closed down. She replied jocularly that she might have to go on welfare. Arandas stated that he knew she would not do that because, if that was what she wanted to do, she could have done so years ago. Shank then replied that perhaps she would sell shoes at Penney's, adding that she had been through a "heck of a lot" in her life and had survived and could do it again. On or about August 6, employee Craig Bennie had oc- casion to have a conversation with Vargosko at Bennie's desk while the latter was making some evening collec- tion calls. Vargosko told him that he just wanted to get a few things off his chest. Making reference to the union drive, Vargosko told Bennie that he felt hurt that Bennie had not seen fit to come to him when he had a problem and told him that he was aware that Bennie had been passing out cards. Bennie assured him that the union drive should not be regarded as personal vendetta. Var- gosko informed him that he had been named as a ring leader. Bennie said he would certainly like to know who had conferred that title on him, but Vargosko said that it was not important. He went on to ask Bennie why he thought the Union was being formed. Bennie replied that it was being formed because the average employee did not feel he had much protection if a manager had it in for him. He made reference to a case in which the Com- pany had contested an unemployment compensation claim by a marginal employee who had quit. He also cited an example of a CRT operator who was assigned night duty because he got into an argument with a super- visor. Vargosko asked Bennie if the fact that he owed Bennie $40 had anything to do with Bennie's decision and Bennie told him that it did not. Bennie agreed that now the employees were making a decent wage since the July increase had taken effect. Vargosko told him that the increase had been planned for years but Bennie argued that it had taken until now before the employees could see their increase in their 201 0I)2ICISI()NS ()OF NA 'I()NAI. L.AB()R RA'II()NS O()ARI) paychecks. Vargosko then told Bennie that Ward's might close the office and thereby endanger both of their jobs. He said that the Albany office could handle the work- load if necessary. He also told Bennie that he could no longer push Bennie's application to join Ward's manage- ment since he was now a union supporter. Later, Bennie spoke to Anderson and complained that he had been told that his union activities had disqualified him from consideration for a management position. An- derson disavowed these remarks and told Bennie that, if lie were interested in such a position, he should talk to him further about it. In a second conversation with Vargosko, which took place some time in August, Vargosko told Bennie that if things got real bad Ward's might close down the CSC because it would become too expensive to operate. He defined "real bad" as meaning a situation in which the Respondent would have to pay the employees at CSC so much money that it would be too expensive to operate the center. Shortly after the union meeting of July 23 at the Sheraton-Cireensburg, Vargosko summoned employee Frances Temple into his office and told her that he had heard about the meeting. Her reply was "What meet- ing?" lie mentioned that there was a union meeting and that she was reported to have said at the meeting that she had only received one merit raise during her employ- ment at Ward's. Temple denied making this statement arnd stated that it was someone else who said it. Var- gosko contradicted her, saying that he knew of three or four witnesses who had heard her. He went on to say that, by wanting the Union, she was in effect saying that Ward's is a terrible place to work. Temple disagreed, noting that Ward's had a new building which had a pleasant atmosphere. Vargosko told her, "Don't be coy. The Union man has told you nothing but lies." He asked her if she was for the Union and she replied that she was in the process of thinking about. Vargosko insisted, "Don't be coy with me. I warit an answer." Temple simply repeated that she was still thinking the matter through. Vargosko went on to tell Temple that. when he came to Greensburg, he had taken an interest in her career and recounted that they had several long talks about it. He stated that he would like to have such a relationship again. He told her that he did not like her attitude and said it was like the attitude of Jackie Bentner, a former employee. He reminded Temple what he had done about Miss Bentner on her personnel evaluation and that they had hassled over it for 2 or 3 days. Vargosko suggested that Temple had better change her ways of thinking and that she should talk to other employees along those lines as well. tie then went over her "trav figures" (the statis- tical summaries of her collection efforts), told her that she was a good collector, and asked her if she wanted a better job. She replied, "Sure," whereupon Vargosko told her for the second time that she would have to change her way of thinking. He suggested that he would like to see her in a training or supervisory position and told her that Ward's had plans to establish at Greensburg one of the biggest credit service centers in the eastern United States. Because of these plans, Ward's would need more collectors, adjusters, and other employees. lie also told Temple that he and his wife were in the prIcess of building their dream house and that he would certainly hate to tell his wife that she had to move. He said that he would feel very bad if King were removed is credit manager. They went on to discuss the proper method of giving out merit raises and, in the course of the conversation, Vargosko said that he was going to give Nestler all the hassle he could. He also told Temple that he did not like the look which she had given Craig Bennie during the meeting at which Anderson an- nounced the pay increases. He felt that her expression in- dicated that she thought the Union was responsible for the pay raise. Temple then voiced a complaint against su- pervisor Jack Bauer, claiming that he had forbidden her from taking medication at her desk which she needed for an ailment from which she was suffering. O()n or about August 17, Temple overheard a conisersa- tion between Bauer and employees Pam Kent and Karen Shoemaker. Bauer told them that if any of them should file a grievance against hini, he would in turn file a grievanice against them which would be entitled Mont- gomery Ward versus the employee. He said lie knew he could do this because he once worked in a mill that had a union contract and insisted that no one could fool around with him. On or about August 21, Anderson and Feinberg had a general meeting with employees, in the course of which Feinberg outlined the many good things about employ- merit at the CSC in its current nonunion status and asked employees what made them so dissatisfied that they would try to bring in a union. Among other things he said that Ward's would never consent to a separate health insurance plan at the CSC because it had its own plan. He suggested that employees check out Local 590 and told them they would find that its track record was not vecry good. He said that under a union contract all persons in the same job classification would receive the same pay. Either at this meeting or at another similar one Anderson told the CSC employees that, where he had previously worked, the employees were so unhappy with the union that the company moved down the street to get away from it. During the course of the meeting, Temple asked Feinberg if the CSC would closeup if the Union came in. Feinberg hesitated before answering and then replied that the CSC had been a money-making center in the past but he could not tell about the future. If profits started going down and the CSC was no longer number one, "who could say what the future would bring?" He refused to give the luestion a definite answer. Feinberg told some employees that Ward's had not yet signed a lease on some nearby office space that was under construction and said that Ward's might not occupy that space. He went on to say that, if the Union came in, the ACM's (area credit managers) would be acting like policemen. ie recounted that at the CSC in Baltimore, everytime there was a little violation they had to drag out the contract and go into the office. He sug- 202 M1()NI(M()FMRY WARD & C() gested that everyone was much happier when the Union "moved up the street." In a private conversation which occurred at or about this time between Arendas and Marge Barnhart, Arend;ls told Barnhart that he was worried about the organizing campaign because he might be out of a job if the Union came in. He was particularly concerned because he had just built a ne\w home. He told Barnhart that if a union came in she could not talk with the boss. Barnhart said she did not think this was true because she had previous- ly worked in a union establishment and she could talk to the bosses whenever she wanted to. On August 30, a section meeting took place at the call of Vargosko and Bauer. Vargosko said that he wanted to get at the bottom of this union business and to find out what the problems were and what was going on. He told the assembled employees that he had called in various people to talk about the Union but he still could not find out what was going on. He said he was surprised be- cause the people at the meeting were in his old section before he had been transferred to Chicago. Employee Darlene Wilkinson spoke up and said that she called the Labor Relations Board "and you should have heard what they had to say about that Union." Then Vargosko asked Temple it' he had cleared up the problems between herself and Jack auer. Temple simply shrugged her shoulders He also asked Kent if she had cleared up the problems she had been having with Bauer and received the same response front her. Vargosko then threw out the question of how many of the employees had ce er worked for a union. He stated that he worked in a union establishment when he was in college and he did not like it because they were strict about punching in. Certain rules and regulations had to be followed in a union shop whereas, at Ward's, if alln employee arrived late lor work no one says anything. Wilkinson spoke up again to ask what Nestler knew about the CSC operation. She characterized him as a "dumb butcher from A & P." Vargosko said that, if he felt that he had been the cause of the employee prob- lems, he would apply for a transfer. Bauer then interject- ed that the organizational effort was not his fault because it had started in April when Vargosko was still in Chica- go. Vargosko then offered to permit any employee to use company phones, including long-distance toll charges, to call anywhere they wished in order to check on the Union. On September I 1, the employees had a second preelec- tion meeting with Feinberg. Because of the blocking charge which was filed, the election never took place. However, as of September 11, this determination had not yet been made. At this meeting, Feinberg told the em- ployees that he had heard that the Union was promising to provide them with Blue Cross-Blue Shield medical and hospital insurance coverage. He said that this would never happen and that employees would not get more than what they were receiving presently in the way of insurance benefits because Ward's had its own com- panywide policy and it would not deviate from its policy. He disparaged the Union's promise to provide flexi-time since the employees already enjoyed this bene- fit. He said that. if the Union comes in, there will never again he a relationship between management and em- ployees at the CSC under which a supervisor could take an erring employee aside in a private meeting for the purpose of scolding or reprimanding her. 11. ANAl SIS \NI) CONCI SIONS A. The Rcefu.ul lo Bargain The parties agree that a unit composed of all full-time and regular part-time employees employed at the Greensburg CSC, with the usual exclusions, is appropri- ate for collective-bargaining purposes. They further agree that a list of 70 persons whose names are found on General Counsel's Exhibit 2 were employed in that unit on July 9, 1979, although the General Counsel reserecd the right to contest the inclusion of Shirley Pushwa as a confidential employee. The parties later agreed to the in- clusion of Janet Raley and Connie Eicher. The General Counsel also urges the inclusion of Donita Pierce and Linda Ohr. both of whom the Respondent claims had been terminated as of the date that Nestler made his demand for recognition. Shirley Pushwa was an office clerical employee ho served as secretary to Brian King, the credit manager. The nature and scope of her duties are not detailed in the record. The Board recently held that. "in order to be considered 'confidential,' an employee must be shoswn to assist and act in a confidential capacity to a person who formulates, determines, and effectuates management poli- cies in the field of labo,r relations." Implicit in this stand- ard is the requirement that the assistance provided b the alleged confidential employee be in the field of labor re- lations. Evidence of routine secretarial assistance to a company official charged with the above-recited duties is not sufficient to warrant the exclusion of a secretary on the basis that she is a confidential employee. Pilgrim l ijii Insurance Company. 249 NILRB 1228 (1980). Since there is no evidence that Pushva performs the duties outlined above, I will include her in the unit. Both Pierce arid Ohr were office clerical employees at the CSC on July 3, In both instances, July 3 was the last day on which they actually worked. Neither reported as scheduled on July 5 or thereafter. Ward's has a policy that if any employee does not report for work and also does not call in for three consecutive workdass, the em- ployee in question is terminated. The Respondent admits that exceptions are made to this policy. In the case of Ohr, who was suffering from a hand injury, the Re- spondent made repeated inquires throughout the month of July to determine her whereabouts and her employ- ment intentions. It is not necessary to decide whether these acts, as well as considerable delays in the process- ing of paperwork necessary to effectuate their dis- charges, actually postponed their actual termination dates beyond July 9, the third consecutive workday on which they failed to report for work without notice. Personnel Manager Wowak testified that. as of July 9, both women were regarded as company employees. Accordingly, I conclude that a total of 74 employees-the entire list in the record plus Raley, Eicher, Pierce, and Ohr--were employed in the bargaining unit at the time when Nestler 203 DECISIONS OF NATIONAI LAIBO)R RELATIONS BOARD visited the CSC office at Greensburg to make both an oral and written demand for recognition. B. The Validity of the Authorization Cards The cards signed by various CSC employees during the first 10 days of July 1979, stated on their face: I hereby request membership in and also author- ize the Amalgamated Food Employees Union, Local 590, of the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, to represent me and bargain collectively with my employer on my behalf to negotiate and conclude all agreements concerning wages, hours, fringe benefits and other terms and conditions of employ- ment. The language of the card is clear beyond peradventure as to its meaning and this clarity should not be over- looked when passing upon various contentions advanced by the Respondent to the effect that the employees in question were duped or deceived by union agents as to purpose of the cards when they signed them. W. H. Scott d/b/a Scott's Wood Products, 242 NLRB 1193 (1979). Following the decision in Gcssel, a large volume of case law has been developed to resolve various conten- tions which have arisen in applying its teachings to so- called card cases. For instance, there is no legal require- ment that the General Counsel must establish the signing of a card only through the personal testimony of the card signer. Secondary evidence to establish the identity of the card signer and his act of signing is quite suffi- cient. 1 2 A witness providing such secondary evidence need not have actually seen the employee sign the card so long as he can identify the card as having been ex- ecuted by the signatory employee." Nor does the fact that a card is undated destroy its validity. Collateral evi- dence may be relied on to establish when an undated card was signed, 4and such evidence may include offi- cially noticed Regional Office time and date stamps if the card was submitted to the Board in support of a repre- sentation petition.'5 If a respondent fails to object to the introduction of a card at the hearing, it will be precluded thereafter from challenging its validity. 6 Where, as here, the purpose of the card is set forth on its face in unambiguous language, the Board will not, in the absence of misrepresentations, inquire into the subjec- '' Respondent appears to question whether Nestler actually made a recognition demand during his visit to the CSC office on July 9 In addi- lion to his oral remarks, he proffered a letter and a recognition agreement which had a place for the signature of an appropriate company official. The agreement slated, inter ala, that the "undersigned employer agrees to and hereby recognizes Local 59() . as the sole and exclusive bar- gaining agent on behalf of all office employees . at the Company Credit Office in Greensburg. While King and Anderson refused to read these documents and treated them as if they were hot potatoes, their import could hardly be clearer. 12 Don the Beachcomber, 163 NLRB 275 (1967); L l'veel Importing Co.. 219 NLRB 666 (1975) i Ibid. 14 Mid-oasr Consoldation Warehouse, a Division of Ethan Allen, Inc.. 247 NLRB No 9 (1980) I5 Fabricators, ncorporated, 168 NRB 140 (1967); rea Disposrl. Inc, 200 NLRB 350 (1972); Ruby Concrete Company, 213 NLRB 724 (1974) '6 Pilgrim Life Insurance Company. supra. tive motives or understanding of the card signer to deter- mine what the signer intended to do by signing the card. 17 Indeed, there is strong language in the Gissel de- cision itself which indicates that the taking of such evi- dence is impermissible. ' Statements made to card sign- ers by solicitors that the purpose of the card is "to get an election" '9 or that it is "for the union to come in" 20 do not constitute misrepresentations since one of the pur- poses for which a card may be used is to support a rep- resentation petition. Only where there is a deliberate effort on the part of a card solicitor to induce a prospec- tive signer to ignore the express language of a card by telling him that the sole and exclusive purpose of the card is to get an election should the card be invalidated by virtue of misrepresentation. 2' The General Counsel placed in evidence some 41 au- thorization cards. Objections lodged at the hearing to certain of the cards on the ground that the signer did not personally verify her signature at the hearing or the card was undated were, in effect, abandoned by the Respond- ent in its brief. In its brief, the Respondent limited its ob- jections to five cards which it claims were the product of misrepresentations violative of the Cumberland Shoe rule, as well as two cards which, on their faces, appear to have been signed on July 10, the day after Nestler make his initial demand for recognition. The five cards falling into the first category were signed by Rosealice Falkowski, Cindy Ghrist, Pamela Corn, Deborah Wun- derley, and Delores (Dee) Robinson. The cards contain- ing July 10 signature dates were signed by Helen Hanson and Joanne Houck. At the hearing, no objection was interposed to the in- troduction of the cards signed by Wunderley, Ghrist, and Corn. Accordingly, I will not entertain any objec- tions to their validity which were lodged thereafter. Falkowski did not recall who gave her the card which she signed. She did recall that she returned it to employ- ee Jeanne Armes. She read the card before signing it and returning it. Falkowski testified that she did not recall anyone telling her that the card would be used solely to obtain an election. She merely assumed that this was so.22 She then went on to say that employees who sat in '7 Colonial Lincoln Mercury Sal. Inc.. 197 NlRB 54 (1972). '^ Gisel, 395 U.S. at 607-608: We cannot agree with the employers here that employees as a rule are too unsophisticated to be bound by what the), sign unless ex- pressly told that their act f sigilng represents something else. We also accept the observation that employees are more likely than not. many months after a card drive and in response to questions bh company counsel. to give testimony damaging to the Union, particu- larly where company officials have previously threatened reprisals for union activity in violation of Section 8(a)(l) . . . We therefore reject any rule that requires a probe of an employee's subjective mo- tivations as involving an endless and unreliable inquiry. IS fhe Holding Company. 231 NLRB 383 (1977) 2-c Drug Package Company. Inc.. 228 NLRB 108 (1977) 2 C & W Mlning Company. Inc. 248 NLRB 270 (198(1); Jeffrey Manut- facturing Division Dresser Industries. Inc.. 248 NLRB 33 (198(); Hiedirom Company v. :.L.R.B., 558 F 2d 1137 (3d Cir 1977) 2 In the course of her acillating testimony. Falklwski stated that Nestler told her at a meeting that the card would be used to get an elec- Continued 204 M()NTGO()MERY WARD & CO. her immediate vicinity at the CSC and who were en- gaged in card solicitation had said that the sole purpose of the card was to obtain an election but she could not identify any particular individual as having made this statement. I conclude that her signed card is far more re- liable than her testimony about purported misrepresenta- tions, and that her subjective understanding or misunder- standing as to its meaning is irrelevant to the purpose of the card she signed. Accordingly, I would count the card signed by Falkowski. The card of Delores Robinson was solicited by em- ployee Connie Eicher. Eicher told Robinson in the course of a discussion concerning the card that the card would get a vote for the union in the office and Nestler had said that a vote was one of the things which could eventuate from the signing of cards. She testified that she told Robinson that Nestler would present the cards to the Company "for a vote." At no time did Eicher tell Robinson that the sole purpose of the card was to obtain an election. Telling a prospective card signer that a pur- pose of the card is to obtain a vote is not misrepresenta- tion. On the contrary, it is an accurate statement of one of the purposes of the card. Accordingly, I would not disqualify Robinson's card and would count it in deter- mining the Union's majority status on July 9.2 3 If all of the valid cards other than the two which appear on their face to have been signed on July 10 are counted, the Union's majority on July 9 comes to 39 in a unit of 74 employees. Since this showing is sufficient to support a conclusion that the Union was the majority representative of the CSC employees at the time Nestler made his initial demand for recognition, it is not neces- sary to determine the status or effect of the cards signed on July 10 by Hansen and Houck nor is it necessary, as noted above, to determine on what date after July 9 the Respondent actually terminated employees Ohr and Pierce. Accordingly, I conclude that on July 9, 1979, the Union was the majority representative of the CSC em- ployees in the unit which both parties agree is appropri- ate for collective bargaining. When the Respondent re- fused recognition and followed up its refusal by commit- ting several unfair labor practices discussed in detail infra, it violated Section 8(a)(l) and (5) of the Act. C. The July II Wage Increase As noted above, on July 11, 2 days after Nestler vis- ited the CSC office and demanded recognition, the Re- spondent granted wage increases to every member of the bargaining unit. There was no uniformity or consistency in the amounts of the increases. Several employees testi- fied that the increases they received were far and away tion However, upon further examination it appeared conclusively that the meeting in question did not take place until about 2 weeks after she had signed her card. 23 During the wnr dire of witness Joanne Armes concerning the au- thenticity of the card of employee Mary Carr, the Respondent's counsel attempted to exceed the narrow limits of voir dire by asking Armes gener- al questions about what she heard card solicitors say as to whether the only purpose of the cards was to get an election The question went beyond the scope of voir dire on Carr's card, and, upon timely objection. it was disallowed. Now the Respondent wants to reopen the record, pre- sumably for the purpose of asking the question again I adhere to ms ruling at the hearing and decline to reopen the record the largest they had ever gotten while working for Ward's. More to the point, most if not all of the employ- ees who received an across-the-board raise in July also received an across-the-board raise in April, though of a much more modest character. Where a wage increase is granted during the course of an organizing campaign, there is prima facie evidence that it was granted in order to undermine the union's effort and, as such, violaies Section 8(a)(1) of the Act. .L.R.B. v. Exchange Parts Company, 375 U.S. 405 (1964). The Respondent seeks to justify the increase in question on the basis of business reasons; namely, that it had taken a wage survey, found that its scale was below wages being paid for comparable work in the locality, and instituted the increases in order to become or remain competitive with other companies who hire clerical em- ployees. Its contention is wholly without merit. The wage survey upon which it rates was taken in March and was the basis of the April readjustment. If keeping up with the competition was its motive, why did the Re- spondent fail to accomplish this goal in April before the advent of the organizing effort when its inquiries to other employers had disclosed some disparities in its rates when compared with those paid by other firms? No one took the stand to explain this obvious flaw in the Re- spondent's contention, so I assume that no explanation was possible. Based upon the factors of timing, animus displayed in collateral antiunion statements, 24 the amount and range of the July increases, and the absence of a plausible explanation for the granting of increases at that time, I conclude that, by giving CSC employees across-the-board pay raises on July 11, the Respondent herein violated Section 8(a)(1) of the Act. D. Other Violations of Section 8(a)(1) of the Act In addition to the wage increase granted on July 11, the Respondent herein violated Section 8(a)(l) of the Act by the following acts and conduct: (a) Miller had long sought a transfer from the section supervised by Rosalie Tantlinger but had been unsuccess- ful in her quest. The personality conflict between the two women was known to others in the Respondent's management. Vargosko's effort on July II to reopen the question and his inquiry to Miller at that time as to her current relationship with Tantlinger was an attempt to adjust a longstanding grievance. The conversation fol- lowed hard on the heels of the Union's demand and was prompted by a desire to assuage the complaint of a lead- ing union activist. Accordingly, the inquiry of Vargosko into this grievance with a view toward adjusting it vio- lated Section 8(a)(l) of the Act. (b) When Wowak was asked by Dragovich whether the advent of the Union would cause the closing of the CSC, Wowak gave a reply which indicated that it might have just that result, telling her that it would only take 2 days to transfer all of the Greensburg accounts to an- 2 ()O more than onre lccasioln hen the Respondentl supervis ors were soluiding ult employees as to the reasons for their disconltenit, thc referred to the Jul} increase as an argimentl in faso:ir of rejecting the Union 205o I)1' tISI()NS ()F NA II()NAL L.ABO()R R.AII()NS I()ARI) other office in laltlimore. hllis type of not-loo-subllc in- timidation violates Section 8(a)( I) of the Act. (c) Tantlinger's statement to Miller on or about July 19 that the latter had been doing more around the office lately than merely talking to herself was, i this context, an effort to inform Miller that her union activities were the subject of company surveillance and thus a iolation of Section 8(a)(1) of the Act. (d) Vargosko's inquiry to Miller in his office, made late in July, as to why she would permit her disagree- ment with Tantlinger to lap over into support of a union, amounts to coercive interrogation in violation of Section 8(a)(l) of the Act. His further statement to her on this occasion that he would have transferred her if he had known that this disagreement would cause her to become prounion amounts to an indirect promise to adjust a grievance in exchange for rejecting the Union and also violates Section 8(a)( ) of the Act. (e) Vargosko's inquiry, directed to Miller, as to why employee Pam Kent had gone "the other way" amounts to an interrogation of employees concerning the union sentiments of other employees and violates Section 8(a)(1) of the Act. (f) His statement to Miller that "Sis" Wells was proun- ion because she was incompetent and needed union pro- tection implied that Wells' union sentiments and activities were the subject of company surveillance. (g) Vargosko's statement to Miller that he did not want her to talk about the Union during working hours is a violation of the Act but it does not amount to the promulgation of a general no-solicitation rule or no-dis- tribution rule since the directive was aimed solely at Miller. While an employer has the right to demand that an employee devote his or her working time to work, it may not single out union activities as the sole nonwork- ing activity which is proscribed during working hours. There is ample evidence in the record of antiunion activ- ity being carried on by employees during working hours as well as other nonwork related activity, such as raffle tickets, Avon products, and the like being sold by em- ployees during working hours, to support a finding of disparate treatment in the order given by Vargosko to Miller. Accordingly, I conclude that his directive to her on this occasion violated Section 8(a)(l) of the Act. (h) Tantlinger's statement to Miller during the course of her July 27 evaluation that Arendas was upset with Miller because of her union activity constitutes the cre- ation in the mind of employees that their union activities were the subject of company surveillance in violation of Section 8(a)(1) of the Act. (i) Tantlinger's question to Miller to the effect that, if she did not have anything to do with the Union why did she invite employees to come to her house for a union meeting, is coercive interrogation in violation of the Act, as well as a statement which implies company surveil- lance of her union activities. (j) Tantlinger's further statement to Miller during the course of her evaluation interview that Anderson and other supervisors had discussed her activities and had concluded that she was the leader of the organizing drive is another effort to instill in Miller's mind the im- pression that her union activitics were subject to conipa- ny surveillance. (k) antilinger's inquiry to Miller, made just before the scheduled (date of the election, as to what her problems were, and her suggestion that she take these problems to Anderson was a solicitation of grievances with a view toward adjustment which violates Section 8(a)(1) of the Act. (I) Arendas' statements to Shank that if the union came into the office, things vould change drastically, limita- tions would be placed on breaktimes, employees would not be allowed to chitchat with their friends, and the office atmosphere would be much stricter, constitute a threat of reprisal which violates the Act. (m) Arendas' statement to Shank that her good friend Miller was trying to sway her vote in favor of the Union creates another impression that the union activities of employees was under company surveillance. (n) Arendas' warning to several employees that, if the Union came in, they would not be able to sit and talk on company time as they had been doing violates Section 8(a)(l) of the Act. (o) Arendas' question to Shank as to what she would do if the office closed down amounts to a threat of reprisal for union activities in violation of Section 8(a)(1) of the Act. (p) Vargosko's statement to Bennie that he knew that the latter had been passing out union cards and his state- ment that Bennie had been named as a "ring leader" cre- ates an impression of surveillance of union activities by company officials. (q) Vargosko's question to Bennie in the course of the same conversation as to why the Union was being formed is, in this context, coercive interrogation. (r) Vargosko's statement to Bennie that Ward's might close if the Union came in and send the work to Albany, thereby endangering his job and Bennie's job as well, constitutes a threat which violates Section 8(a)(1) of the Act. (s) Vargosko's statement that he could no longer sup- port Bennie's application for a management position be- cause of the latter's union activities violates the Act. The fact that Anderson later repudiated Vargosko's statement in no way nullifies the violation since Bennie had to dis- close his union activities to Anderson in order to voice his complaint about Vargosko's statement. (t) Vargosko's second statement to Bennie on the clos- ing of the office-that Ward's might have to close it if things got "real bad"-is just a reiteration of the first threat and is also a violation of the Act. (u) Vargosko's statement to Temple about what she had stated at a union meeting concerning her merit in- creases creates an impression of surveillance of union ac- tivities which violates Section 8(a)(1) of the Act. His fur- ther statement to her on the same occasion, in which he asked her if she did support the Union, is coercive inter- rogation which violates Section 8(a)(1). (v) Vargosko's statement to Temple that she had better change her ways if she aspired to a management position and his expressed desire to see her in a management posi- tion were both a threat and a promise in the same con- 20h \M()NI(i()ON RY \VARD & C() versation hich violated Section 8(a)( ) of the Act. as the latter statement was a positi. e inducemenlt to encour- age her to reject the Union. His statement to her that he did not want to have to move because he and his wife had just built their dream house implies that, if the Union came in, the CSC would be closed. Such a statement is an illegal threat, even if couched in guarded language. (w) Vargosko's statement to emple that he did not like the look she gave Craig ennie when wage increases were announced by Anderson at the meeting in July be- cause she was implying that the Union was responsible for these increases created an impression that her union sympathies were under company surveillance. (x) IBaiuer's statement that, if any employee iled a grievance against him hie would file a counter-grievance which the Cominan wvould support, is a threat of repris- al which iolates the Act. (y) Arcndas' statement to Marge arnhart, similar to the one which he had made to Temple, that he was wor- ried about the union drive because he and his wife hadl just built their dream house and he did not want to move, is another guarded threat that the office would close in the event of unionization and thus a violation of the Act. (z) Vargosko's statement at a group meeting that he had talked to various people to find out what was going on, could not do so, and was calling an employee meet- ing to pursue the same questions amounts to an admis- sion of systematic interrogation as well as continued in- terrogation concerning union activities, both of which are violative of the Act. (a)(a) Vargosko's question, in the course of this meet- ing, to two employees as to whether he had cleared up the problems they had been having with their supervi- sors is not only coercive interrogation but the attempt publicly to announce the conferring of a benefit, namely, the adjustment of grievances, in order to dissuade em- ployees from supporting the Union. His statemenits io- late Section 8(a)(1) of the Act in both particulars. (b)(h) Vargosko's statement to employees that that work rules, especially in regard to punctuality, would be tightened up in the event of unionization is a threat which violates Section (a)(1) of the Act. E. The Jul, 26 Personnel Evaluation of liller There is little doubt that Miller was the Union's princi- pal organizer during the campaign and that the Company knew it. She was also personally subjected to certain vio- lations of Section 8(a)(1) which have been previously dis- cussed. Some of these coercive remarks took place in the course of the July 26 personnel evaluation by Tantlinger. Miller refused to sign the July 26 (or 27) evaluation and claimed at the hearing that it was unfairly prepared be- cause of union animus. Miller's self-evaluation on the front sheet of the office and clerical appraisal form differs in several respects from Tantlinger's evaluation, but Miller does not assert that these differences were the product of bias or union animus. Moreover, Miller stated in her testimony that she did not object to the composite rating of "satisfac- tory" which was given to her by Tantlinger. She does object to certain narrative comments which were placed on the form bh Tantlinger and specifically the statements "If all work hours were spent on assigned jobs. perform- anice would improve" "cmplovee is satisfied with aver- age performance, and does not strive to improve". aind "handling of customers is impros ing. but occasional complaints are received regarding handling of custom- rs. tier appraisal from Tantliiger in May stated that she displayed an agressive attitude tov ard her joh but that it would he beneficial for her to develope more tolerant haiidling of customers and peers. It noted that she had a quick temper which causes her to ovcrreact in ome in- stances. An appraisal form placed in the record fromi January 1978 stated that Miller made a sincere effoirt to achieve the objectives set forth in her assignment and has imlproved her concentrationli Miller was on the monthly honor roll for 4 months in the second half of 1978 but did not achieve this distinc- tion during the first 6 months of 1979. This award is nor- mally made on the basis of superior performance, as de- Icrmined by performance statistics which arc kept on each employee, each section, and the entire center. While the evaluation rendered on Jul' 26 ; not up to Miller's expectations, her performance during the period it covered did not prevent her from previously receiving a 1.29-per-hour pay increase, the largest i her 4 year tentire with the Respondent, nor did it prevent her from getting a 29-cent-per-hour increase in January 1980, when her next evaluation was made. Apparently Miller's performance statistics were down in July from what they had been during the banner months in 1978. In any event, she was statistically even in one respect with her section, above her section in one category, and below it in another. It is conjectural whether these statistics were the result of her actual per- formance which was truly recited in the mild critcisms contained in the narrative on her evaluation sheet. On the other hand, it is not free from doubt that these re- marks might be colored by the recently expressed animus which Tantlinger displayed toward her. Ho'wever, it is the General Counsel who bears the burden of proof and that proof does not show, by a preponderance of the e i- dence, that the comments which Miller found offensive were either untrue or the product of discrimination. Ac- cordingly, I would dismiss paragraph 7 of the complaint. Upon the foregoing findings of fact, and upon the entire record herein considered as a whole, I make the following: CONCI L;SIONS ()I LAW 1. Respondent Montgomery Ward & Co., Incorporat- ed, is now and at all times material herein has been en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Amalgamated Food Employees Union, Local 590. affiliated with the United Food and Commercial Work- ers International Union, AFL-CIO. is a labor organiza- tion vithin tle meaning of Section 2(5) of the Act. 3. All full-time and regular part-time employees em- ployed by the Respondent at its Greensburg. Pennsylva- nia, Credit Service Center, exclusive of guards, profes- 21)7 DI)tCISI()N S ()F NA'I'I()NAI. I.ABR R.ATI()NS HO)ARD sional employees, and supervisors within the meaning of the Act, constitute a unit appropriate for collective bar- gaining within the meaning of Section 9(b) of the Act. 4. Since on or about July 9, 1979, the Union herein has been the exclusive ollective-bargaining representative of all of the employees in the unit found appropriate in Conclusion of L.aw 3 tfor purposes of collective bargain- ing, within the meaning of Section 9(a) of the Act. 5. y refusing to recognize and bargain with Amalga- mated Food Employees Union, Local 590, affiliated with United Food and Commercial Workers International Union, AFL-CIO, as the exclusive collective-bargaining representative of its employees in the bargaining unit found appropriate in Conclusion of Law Number 3 herein, the Respondent has violated Section 8(a)(5) of the Act. 6. By the acts and conduct set forth above in Conclu- sion of Law Number 5; by granting a wage increase for the purpose of persuading employees to reject the Union; by coercively interrogating employees concerning their union sympathies and activities and the union sympathies and activities of other employees; by creating in the minds of employees the impression that their union activ- ities and those of other employees were the subject of company surveillance; by threatening to close its CSC office if the Union became the bargaining agent of its employees; by threatening to impose upon employees more ornerous working conditions if they selected the Union as their bargaining agent: by soliciting grievances from employees during the course of an organizing cam- paign with the implied promise that said grievances would be redressed; by threatening employees with loss of promotion because of his union activities; and by di- recting employees to cease from engaging in union activ- ity during working hours while permitting other employ- ees to engage in anitunion and nonwork related activity during working hours, the Respondent herein violated Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices have a close, in- timate, and adverse effect on the free flow of commerce within the meaning of Section 2(6) and 2(7) of the Act. RE MI I)Y Having found that the Respondent herein has engaged in certain unfair labor practices, I will recommend that it be required to cease and desist therefrom and to take certain affirmative actions designed to effectuate the pur- poses and policies of the Act. Since the independent vio- lations of Section 8(a)(1) of the Act found herein are re- peated and pervasive, I will recommend to the Board a so-called broad 8(a)(1) order designed to suppress any and all violations of that section of the Act. Hickmott Foods, Inc., 242 NLRB 1357 (1979). The General Counsel has requested a so-called Gissel remedy, the effect of which is to require the Respondent to recognize and bargain with the Union as the exclusive collective-bargaining representative of its employees. The Respondent claims that an election is the proper remedy, although such an election could not take place at this time since there is no representation petition pend- ing. The Respondent points to certain controversial and allegedly false remarks which Union Representative Nes- tier made during the organizing campaign. From this questionable premise it argues that the Union's loss of majority during the campaign stemmed from these re- marks, not from any action on the part of the Respond- ent, so it would be unfair to force the Respondent to rec- ognize the Union on the basis of authorization cards rather than as the result of a representation election. This is not a Joy Silk Mills25 case and there is no need to find that unfair labor practices rather than some other activity caused the Union to lose its majority status. Indeed, there is no reason to conclude on the facts of this case that the Union ever lost its majority status. Moreover, assuming without deciding the genuineness of the signatures which appear on a petition filed with the Regional Office during the hearing of this case, there is no reason to give any weight to this petition in determin- ing the appropriateness of a bargaining order. It is clear that the attitudes of the members of this bargaining unit have been well massaged with repeated unfair labor practices so any petition which might spring forth from this group of employees is more than merely suspect. In the Board's recent decision in J. J. Newberry Co., a Wholly Owned Subsidiary oj' McCrory, Corporation,26 it stated that: Respondent's grant of a substantial wage increase to all unit employees in violation of Section 8(a)(1) of the Act is sufficient to render it unlikely that a fair election could be held. [Citing C & G Electric. Inc., 180 NLRB 427. Idaho Candy Company, 218 NLRB 352; and Lang Feed Company, Incorporated, 227 NLRB 1588.] Thus, the Board has long recognized that employees are not likely to miss the inference that "the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if not obliged." .L.R.B. v. Exchange Parts Company, 375 U.S. 405 (1964). In this case, the Respondent committed a violation which has a uniquely repetitive effect its illegally grant- ed wage increases show up every week or every month in each employee's paycheck and thus provide a linger- ing effect that few unfair labor practices can achieve. The Board and the Third Circuit have issued Gissel orders for conduct no worse than what has been found in this case, and I have no hesitance about recommend- ing such an order here. N.L.R.B. v. S.E. ichols-Dover Inc., 414 F.2d 561 (3d Cir. 1969); N.L.R.B. v. Broad Street Hospital and Medical Center, 452 F.2d 302 (3d Cir. 1971); N.L.R.B. v. Easton Packing Company. 437 F.2d 811 (3d Cir. 1971); N.L.R.B. v. Colonial Knitting Corp., 464 F.2d 949 (3d Cir. 1972); Toltec Metals, Inc. v. A'L.R.B., 490 F.2d 1122 (3d Cir. 1974); Frito-Lay, Inc. v. A'.L.R.B., 585 F.2d 62 (3d Cir. 1978); Kenworth Trucks of' Philadelphia, Inc. v. .L.R.B., 580 F.2d. 55 (3d Cir. 1978); N.L.R.B. v. Daybreak Lodge Nursing and Conva- lescent Hlome, Inc., 585 F.2d 79 (3d Cir. 1978); N.L.R.B. ' J,oy Silk Mill. Inc,. N.L.R.B., 185 F.2d 732 (DC Cir 1950), ceri denied 341 U.S 914 The net effect of Giwl as to lay aside the JoP Silk Mil/s doctrine and t enlarge latitude ,of Board in granting bargaining orders in lieu of directing elections. "' 249 Nt.RH 991 (19(0)) 208 MONTGOMERY WARD & CO. v. Eagle Material Handling Inc., 558 F.2d 160 (3d Cir. 1977); Electrical Products Division of Midland-Ross Corpo- ration v. i:.L.R.B.. 617 F.2d 977 (3d Cir. 1980). 1 will also recommend that the Respondent be required to post the usual notice, advising its employees of their rights and of the results in this case. Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record herein, and pursu- ant to Section 10(c) of the Act, I make the following recommended: ORDER' 7 The Respondent, Montgomery Ward & Co., Incorpo- rated, Greensburg, Pennsylvania, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their union activities and the union activities of other em- ployees. (b) Creating in the minds of employees the impression that their union activities and the union activities of other employees are the subject of company surveillance. (c) Prohibiting employees from engaging in union ac- tivities during working time while permitting other em- ployees to engage in antiunion and nonwork related ac- tivities during working time. (d) Granting wage increases for the purpose of encour- aging employees to reject unionization; provided that nothing herein shall be construed as requiring the Re- spondent to rescind any wage increases previously grant- ed. (e) Threatening to close the company office if the Union becomes the bargaining agent of the employees in the office. (f) Threatening to impose upon employees more orner- ous working conditions if they select the Union as their bargaining representative. (g) Soliciting grievances from employees during the course of an organizing campaign with the implied promise that those grievances will be remedied. (h) Threatening employees with loss of promotional opportunities if they engage in union activities. (i) Refusing to recognize and bargain collectively with Amalgamated Food Employees Union, Local 590, affili- ated with United Food and Commercial Workers Inter- national Union, AFL-CIO, as the exclusive collective- bargaining representative of all of the Respondent's full- time and regular part-time employees employed at its Greensburg, Pennsylvania, Credit Service Center, exclu- sive of guards, professional employees, and supervisors within the meaning of the Act. (j) By any means or in any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative actions designed to effectuate the purposes and policies of the Act: i7 In the event no eceptions are filed as prosided by Sec 112.46 of Ihe Rules and Regulations of the National l.ahor Relations Board. the findings, conclusions, and recommended Order herein shall. as proided in Sec 102 48 of he Rules and Regulations. he adopted h the Board and become it, findings. conclusiotns, and Order and all ohbections thereto shall he deemed waived for all purposes, (a) Recognize and, upon request, bargain collectively in good faith with Amalgamated Food Employees Union, Local 590, affiliated with United Food and Com- mercial Workers International Union, AFL-CIO, as the exclusive collective-bargaining representative of all office clerical employees employed at the Respondent's Greensburg, Pennsylvania, Credit Service Center, exclu- sive of guards, professional employees, and supervisors within the meaning of the Act. (b) Post at the Respondent's place of business at Greensburg, Pennsylvania, copies of the attached notice marked "Appendix." 2 8 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by a representative of the Respondent, shall be posted by the Respondent immediately upon re- ceipt thereof, and shall be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily placed. Reasonable steps shall be taken by the Respond- ent to insure that said notices are not defaced, or cov- ered over by any other material. (c) Notify the Regional Director for Region 6. in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. I r Is FURTHER RCOMMfNI))I) HAI insofar as the complaint, as amended, alleges matters which have not been found herein to be unfair labor practices, the said complaint is hereby dismissed. 1" In the evenl hatl the Board's Order is enfoirced bh a Judgment of a United States Court of Appeals, the words in the ntice reading 'osted hy Order of the National I.ah r Relations Board" shall read "P'oted 'Pur- suani to a Judgmnt of the nited Slates Courtl f Appeal Enfiorcing at Order of the National I ahor Relations Board" APPENDIX Noltc;i To EMPLOYEES POST.D HBY ORDI)ER OF THE NA I IONAi LABOR Rl l ATIONS BOARD An Agency of the United States Government WE Wit .l NOT coercively interrogate employees concerning their union activities or the union activi- ties of other employees. Wr wil. NOT create in the minds of our employ- ees the impression that their union activities are the subject of company surveillance. WE Witl. NOI threaten to close the office or to impose upon employees more onerous working con- ditions because they have selected a union as their bargaining representative. WE Wll . NOT threaten employees with loss of promotional opportunities because they have en- gaged in union activities. WI Wll I. NOT solicit employee grievances during the course of an organizing campaign with the im- plied promise that those grievances will be adjusted. WEi Wll I NOI grant a wage increase for the pur- pose of encouraging employees to reject unioniza- tion. 209 I)1F CISI()NS ()t NAIIO()NAI. I.AI()R RELATIONS B()ARI) WI: Wll. NOI prohibit employees from engaging in union activities during working time while per- mitting other employees to engage in antiunion and nonwork related activities during working time. WI Wll. NOTI by any means or in any other manner, interfere with, restrain, or coerce employ- ecs in the exercise of rights guaranteed them by Section 7 of the National Labor Relations Act. These rights include the right to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for their mutual aid and protection. Wtr Wii.I, upon request, bargain collectively in good faith with Amalgamated Food Employees Union, Local 590, affiliated with United Food and Commercial Workers International Union, AFL- CIO, as the exclusive collective- bargaining repre- sentative of all of our full-time and regular part-time employees employed at the Greensburg, Pennsylva- nia, Credit Service Center, exclusive of guards. proffessional employees, and supervisors as defined ii the Act. MONI(,O11:RF WARD )& CO.. INCO()RPORAI- I1I) 210