Montgomery Ward

MONTGOMERY WARD Montgomery Ward and Warehouse Employees Local Union No. 730, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO. Case 5-CA- 18197 August 25, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On March 27, 1987, Administrative Law Judge Thomas A. Ricci issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The Charging Party filed cross-exceptions and a supporting memorandum. The National Labor Relations Board has consid- ered the decision and record in light of the excep- tions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order2 as modified below. ' The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Or. 1951). We have carefully examined the record and find no basis for reversing the findings. The Respondent excepts to the judge's findings that Thomas Cato was in charge of distribution centers all over the eastern United States, that all 22 technicians take the Respondent's vans home at the end of the workday, and that Douglass was fired on June 20, 1986, the day after the first union organizational meeting . The record establishes that Thomas Cato is the vice president in charge of distribution over 16 distribution centers and 2 fashion distribution centers nationally . The record further establishes that the Respondent employs 22 field technicians and 9 shop technicians at its Landover, Maryland facility. Approximately six to eight field technicians participate in a shuttle program that requires them to drive the Respondent's service trucks home at night. Their work assign- ments are delivered to their homes, and they begin their routes directly from their homes each morning. Finally, the complaint alleges that about June 23, the Respondent terminated its employee, John Douglass. In its answer, the Respondent admits that about June 20, 1986, it discharged Douglass. The record establishes that on June 20, Douglass received a corrective action notice (G.C. Exh. 4) that read, "Violation No. 1" with no violation name, type, or action taken. Thereafter, on June 23, 1986, the same corrective action notice was changed to read , "Violation No. 6, Violation Name-Fraudulent/Deceptive practices" and stated, "Employ- ee is to be terminated per R.L. Quillen area 16 area service manager." (G.C. Exh. 2.) The Respondent contends that the judge resolved only 6 of 10 allega- tions that it unlawfully granted improved conditions of employment. The Charging Party excepts to the judge's failure to find that the Respondent unlawfully provided coverage for its employees under a health mainte- nance organization. The judge did conclude that the Respondent unlaw- fully granted "improved conditions of employment such as medical insur- ance." We find it unnecessary to pass on additional allegations that the Respondent unlawfully granted improved conditions of employment, as the remedy would not be affected. a The Charging Party excepted to the judge's failure to include an ex- pungement remedy in his recommended Order. We shall order the Re- spondent to remove any reference to the transfer , suspension, and dis- charge of John Wagnon and to the discharge of John Douglass from its records. 981 The Charging Party excepts to the judge's fail- ure to pass on and find the 8(a)(3) and (1) allega- tion that the Respondent discriminatorily trans- ferred John Wagnon from his position as merchan- dise handler in the warehouse to receiving clerk in the customer pickup area. We find merit in this ex- ception. Wagnon began employment with the Respondent in May 1983 and worked as 1 of 10 merchandise handlers in the warehouse. Approximately six of the merchandise handlers, including Wagnon, were receivers who unloaded and delivered incoming merchandise. Wagnon was the most senior receiver and the only one with keys to the unloading doors. As a merchandise handler, Wagnon regularly came into contact with all warehouse employees, ap- proximately 25. He was a known union adherent who initially contacted the Union in late May to early June 1986, attended the initial organizational meeting, became a member of the union-organizing committee, wore union buttons, solicited authoriza- tion cards, distributed union literature, and "set up shop" in the break room to discuss the Union with fellow employees during their common breaks and lunch periods. On July 3, 1986, Wagnon was transferred to the position of receiving clerk in the customer pickup center. As the customer pickup attendant, Wagnon worked alone unless a backlog occurred and he re- quested assistance. His lunch and break periods no longer coincided with those of other employees. Two weeks before his change in job assignments, Wagnon was told by Lawrence E. Loveland, re- ceiving and shipping supervisor, that the customer pickup attendant was coming into the warehouse and Wagnon could train him because Wagnon was the senior receiver. Precipitately, Loveland told Wagnon that someone else would perform the training and, without discussion, Wagnon was transferred to the customer pickup department. Based on the Respondent's animus, as demonstrated by the Respondent's other unfair labor practices, its admitted knowledge of Wagnon's union activities, its unlawful suspension of Wagnon on June 25, and the unexplained and abrupt transfer of Wagnon, the senior receiver in merchandise handling, to the cus- tomer pickup area, we find that the Respondent was seeking to take Wagnon out of circulation and to isolate him from other employees because of his union activities. Accordingly, we conclude that the Respondent discriminatorily transferred John Wagnon from his position as merchandise handler in the warehouse to the position of customer pickup attendant in violation of Section 8(a)(3) and 290 NLRB No. 118 982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (1) of the Act.3 Fountainview Place, 281 NLRB 26 (1986); Sealectro Corp., 280 NLRB 151 (1986). ORDER The National Labor Relations Board orders that the Respondent, Montgomery Ward, Landover, Maryland, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Transferring, suspending, discharging, or in any other way discriminating against its employees in retaliation for their protected union activity. (b) Coercively interrogating employees concern- ing their union support or union activities. (c) Telling employees it is aware of their individ- ual union activity. (d) Offering to take employees to the union hall to assist them in canceling their union authorization cards. (e) Soliciting grievances from employees to dis- suade them from engaging in union activities. (f) Granting improved conditions of employment to induce employees to withhold support from the Union; provided, however, that nothing herein shall be construed as requiring it to vary or aban- don any economic benefit or any term or condition of employment that it has established. (g) Inviting employees to form an employee committee to deal with the Respondent in place of a collective-bargaining agent. (h) Threatening to close its plant and discharge its employees. (i) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer John Wagnon and John Douglass im- mediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions without prejudice to their se- niority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them with interest to be computed in the manner prescribed in New Hori- zons for the Retarded.4 8 As we have found that the Respondent violated Sec 8(a)(3) and (1) by transferring John Wagnon from his position as merchandise handler receiving mcommg supplies to the position of customer pickup attendant prior to his discharge, we shall order the Respondent to reinstate Wagnon to the position of receiver in merchandise handling from which he was removed on July 3 4In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 (b) Remove from its files any reference to the unlawful suspension and discharges of John Wagnon and John Douglass and notify the employ- ees in writing that this has been done and that the suspension and discharges will not be used against them in any way. (c) Post at its facility in Landover, Maryland, copies of the attached notice marked "Appendix."3 Copies of the notice, on forms provided by the Re- gional Director for Region 5, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. amendment to 26 U S C § 6621), shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) " If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT discharge, suspend, or otherwise discriminate against any of you for supporting Warehouse Employees Local Union No. 730, a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, AFL-CIO or any other union. MONTGOMERY WARD 983 WE WILL NOT discriminatorily transfer employ- ees and isolate them from other employees in order to restrict their union activities. WE WILL NOT coercively question you about your union support or activities. WE WILL NOT tell employees that we are aware of their individual union activities. WE WILL NOT offer to escort our employees to their union hall to assist them in canceling their signed union authorization cards. WE WILL NOT solicit grievances from our em- ployees for the purpose of satisfying them and thereby encouraging them to abandon their proun- ion resolve, WE WILL NOT invite our employees to form an employee committee to deal directly with manage- ment in place of a union of their choice. WE WILL NOT grant improved conditions of em- ployment to encourage employees to abandon their prounion resolve; provided, however, that nothing herein shall be construed as requiring us to vary or abandon any economic benefit or any term or con- dition of employment that we have established. WE WILL NOT threaten to close our plant and discharge our employees. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer John Douglass and John Wagnon immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantial- ly equivalent positions, without prejudice to their seniority or any other rights or privileges previous- ly enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest. WE WILL notify each of them that we have re- moved from our files any reference to his suspen- sion and/or discharge and that the suspension and/or discharge will not be used against him in any way. MONTGOMERY WARD Steven J. Anderson, Esq., for the General Counsel. Alexandra M. Goodard, Esq. and James J. Kupka, Esq., of Chicago, Illinois, for the Respondent. Roy Essex, of Washington, D.C., for the Charging Party. DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Administrative Law Judge. A hear- ing in this proceeding was held on 12, 13, and 14 Janu- ary 1987 in Washington, D.C., on complaint of the Gen- eral Counsel against Montgomery Ward (Respondent or Company). The complaint issued on 26 September 1986 on a charge filed on 7 July 1986 by Warehouse Employ- ees Local Union No. 730, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (Union or Charging Party). The issues presented are whether the Respondent discharged two employees in violation of Section 8(a)(3) and com- mitted other violations of Section 8(a)(1). Briefs were filed after the close of the hearing by the General Coun- sel and the Respondent. On the entire record and from my observation of the witnesses I make the following FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Montgomery Ward, an Illinois corporation , is engaged in the retail sale of goods and services. Its business loca- tion at Landover, Maryland, is involved in this proceed- ing. During the 12 months preceding issuance of the complaint, a representative period, in the course and conduct of its operations, the Respondent derived gross revenues in excess of $500,000. During the same period it sold and shipped from its Landover, Maryland facility products, goods, and materials valued in excess of $5000 directly to points outside the State of Maryland. I find that that the Respondent is an employer within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that Warehouse Employees Local Union No. 730, a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, AFL- CIO is a labor organization within the meaning of Sec- tion 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES This case turns entirely on questions of credibility. In the very heat of a union organizational campaign among the employees two men were discharged, both overtly active in the movement , one of them actually the moving force. The complaint alleges both men were discharged as a technique to curb the union activity . Denying that charge, the Respondent asserts they were terminated for having violated the work rules in effect. Considering the record as a whole, which side is to be believed? When the two men were fired they were told the reason was violation of the rules. But the management agents who participated in that decision also testified about other things that happened during the critical period. If they were not telling the truth about conversations and activi- ties by the Respondent, their credibility about the major questions becomes suspect. The more direct questions of credibility involve what was said and done by the participants in the whole story. The witnesses disagreed concerning conversations that took place, including critical talks given by one of the Respondent's top officials. These questions do not call for inferences or conclusions to be drawn from the facts. They go instead to the very question of what was said and, in fact, done by the participants. But there is a direct relationship between the two credibility prob- 984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lems-one to resolve questions of intent or motivation in the minds of the supervisors when they fired the two men. The testimony concerning four critical events that took place will set the story straight. The union organizational campaign started in late April and early June 1986. The Respondent, of course, learned about it. On 25 June Tom Cato, a vice president of the Respondent whose office is in Chicago and who is in charge of warehouse and distribution centers all over the Eastern United States, like the one involved in this case, came to Landover. It was the first time he had ever visited that location seriously. His purpose was to speak to the employees, whom he gathered in groups of 12, 15, or 20 in separate meetings that day. Dixie Zais, an em- ployee, testified about what Cato told the group. From her testimony: He talked about the Company, about being new with the Company, and that he was learning, that if we had any suggestions or questions that had to do with the Company to, please, ask him. Some people had questions. He also said he knew the union was trying to come in, and that he did not like to deal with third parties . . . . Q. Can you remember any other suggestions that employees made to him at that meeting? A. Some of them suggested putting files on microfilm. They needed supplies in the ladies' room, just things like that. Cato came back to Landover again on 1 July and this time spoke to all the assembled employees in a large con- ference room. Regarding his talk that day, Zais testified: He just came back to tell us that he had taken care of some of the suggestions and problems we had. Some of the people wanted medical cards. He got that for us. Some of the people wanted HMO. He had taken care of that. The meeting only lasted 4 or 5 minutes, and we went back to work. John Wagnon, then an active employee, testified that with a number of local supervisors sitting beside him, Cato spoke as follows: The whole meeting was prefaced with a statement by Mr. Cato that he knew there was union activities going on and he just wanted to let everybody know that if they wanted to get their cards back that they could do so. And I believe it was Mr. Cardemon who further mentioned that the company could even give them a ride down to the union hall to get them back if they would like. And after that, they proceeded to tell us about many changes that were going to be occurring at Montgomery Ward, such as we were now going to be issued medical insur- ance cards because everybody had been complain- ing that they had no card to present in time of emergency at a hospital. So the statement was made that we were now going to be getting all those. Q. In relationship to medical insurance, did the subject of HMO come up at that meeting? A. Oh, yes and a document was passed out." Cato then listed the changes and conditions of employ- ment that had been decided on. These included: repair on machines that had been neglected, medical insurance card for each employee, reviews and evaluations to be on time henceforth, errors in pay would be adjusted without delay. Wagnon also recalled as follows: They went on to say that there will be the establish- ment of an employee feedback committee, which we hadn't had in the past, and if they didn't have an open door policy before they sure had one now, and that one of the regional supervisors, I guess it was Schmidt, would be coming in from time to time to meet with the employees, and Mr. Cosentini was now going to meet with the feed back committeee every month I believe it was. And then they further went on to us tell we were going to have benefit sessions with Anna Curry, the personnel specialist. Cato also distributed to each employee that day a writ- ten note entitled "Implementation of HMO," explaining this was an opportunity for each employee to enroll in a form of health insurance. Wagnon made clear these were all matters directly tied to the complaints that had been voiced by the employees during Cato's earlier meetings, in which he had solicited their grievances. Cato was not offered as a witness by the Respondent; therefore there is no direct contradiction from him of what the employee witnesses heard him say. Several su- pervisors of the Landover location were present when Cato gave his talk. A number of them testified at the hearing but did not refer to those talks at all. Pat Cosen- tini, one of the top men at Landover, testified regarding the talks in question. In substance his total testimony is not a contradiction of anything the two witnesses-Zais and Wagnon-said . Throughout his direct testimony Co- sentini tried to create the impression that Cato's visit was no more than the usual concern of the Chicago office re- garding how things were going on at Landover, that the conditions of employment listed by the Government wit- nesses were the usual problems of the place, things that did not really change. He said the Company always had an open-door policy, which has not changed. He said management always had meetings with the employees, and gave as an example the Pizza Blast (a company party) as an example. He even said that the Company had planned to improve security-one of the demands voiced by the employees-before the meetings Cato held. The witness' talk in direct testimony was evasive, generalized, and an obvious attempt to remove the sub- ject of the Union entirely from Cato's talk those 2 days. But on cross-examination, Cosentini admitted Cato asked the employees to state their problems, and enumerated virtually the entire list of complaints mentioned by the earlier witnesses. He went on that at the 1 July meeting Cato told the employees that he had been able to make changes as they had asked and added that the employees should bring their problems to the personnel office, where they would be remedied Asked had Cato an- nounced the formation of an employee committee to re- solve problems, the witness said: MONTGOMERY WARD He [Cato] indicated that there's some people that were going to have, instead of the group meetings we were having, that we have smaller meetings and have individuals represented from each area, to form a committee. Q. And he announced that that was going to happen henceforth at that meeting? A. He announced that he was going to review that with management and get our feeling on it and put that into play. Asked did Cato say there would henceforth be an "open policy," Cosentini answered: Well, something to that effect.... The employ- ees came to him and talked about open door policy and he implied that we shall have it if we didn't have. Cosentini's final admission, at the very end of his testi- mony, was that management "certainly was aware" of the union activity when Cato first came to Landover on 25 June. Moreover, he even said: He [Cato] was aware of the activity that was going on and he expressed his opinion. Q. What was his opinion? A. He felt like he didn't like to deal with a third party operation. Words to that effect. That the distribution center manager deliberately tried to create a false impression of the purpose of Cato's ap- pearance at the Landover location could not be clearer. His testimony is the starting point of the Respondent's discredited defense against the basic complaint . Cato's talks reveal clearly the Respondent 's planned program to put a stop to the self-organizational campaign among the employees in complete defiance of the proscriptions of the statute. The case therefore starts with a complete finding of multiple violations of Section 8(a)(1) of the Act. Based on the direct testimony of Zais and Wagnon, which I credit, I find that (1) by soliciting grievances from the employees, (2) by acceding to their ' resultant demands, including improved safety conditions in the workplace, opportunity to enjoy the Company's health insurance plan, and an improved evaluation system and quick payment of salaries, (3) by suggesting the creation of an employees committee . . . to negotiate conditions of employment in the place of an outside union bargain- ing agent, and (4) by telling the employees that thereaf- ter the Company would keep an "open door" policy to hear and consider their grievances, all for the purpose of influencing them away from their prounion resolve, the Respondent violated Section 8(axl) of the Act. One other offer that Cato made to the assembled em- ployees on 1 July must be mentioned here. He told the employees that if they wished to get back their union cards they could do so. Cardemon, the supervisor, also present then, added, as Wagnon also testified, that if the employees so wished, the Company would give them a ride to the union hall to get cards back. This testimony stands completely uncontradicted. I therefore also find that by offering to assist its employees to withdraw from 985 the Union, the Respondent again violated Section 8(a)(1) of the Act. This finding is important because other em- ployees also testified about such assistance being offered them by other supervisors. Employee Natalie Menage testified that after the 1 July meeting by Cato ended, she was called to the office. As she approached the office, a company guard said to her, "We'll go to the union and get your card back." When she asked what the man was talking about, the guard repeated "We'll go get your card from the union hall." At this point Cosentini passed by and escorted Menage into the office of Operations Manager Carde- mon. There, as Menage continued to testify, the conver- sation was: He said I heard a rumor that you want your card back that you signed and they won't give it back to you, and I said, "I don't know what your talking about." He said it again, and I said "I don't know what your talking about.' He said the card that you signed. The employee said nothing about having signed the card, and she just left the office. Called by the Respondent, Cardemon admitted calling Menage to his office on 1 July. He said his reason was because another employee, Linda Williams, a supervisor, had told him the employee was being harassed and there- fore he should talk to the girl. He explained that by mis- take he called Menage to his office instead of "Lisa," whom Williams had mentioned. Cardemon denied having offered to assist the employee get her union card back. His story is that all he said was he had heard the girl was being harassed and wished to help her have it stopped. Asked had he inquired of Menage what she was being "harassed" about, the witness said no. Asked had she told him what the harassment was about, again he said no. Finally, and most importantly, asked had the su- pervisor beneath him told him what the harassment of the girl was about, again the witness gave a clear "no." In short, Cardemon's testimony is that he talked for a while in the privacy of his office with Menage without either of them ever mentioning what the harassment was about. Can one believe such testimony? Cardemon was followed on the witness stand by Linda Williams, the supervisor under him. She said , as plainly as can be, that when she spoke to Cardemon about the alleged harassment she said it was pressure put on an em- ployee about joining the Union . Whatever other finding may be warranted on this record, one thing is absolutely clear, Cardemon lied on the witness stand. The Respond- ent's own witness proved that. By telling employee Menage he had heard she wanted her union card back- right after Cato's speech to all the employees offering them improved conditions of employment to get them out of the Union, and even offering to take them to the union hall to assist them in rejecting the Union-Carde- mon was continuing the overall scheme of the Respond- ent to put a stop to the union campaign. His mere state- ment about knowing about Menage's union activity was a violation of Section 8(a)(1) of the Act and I so find. Again the credibility finding, dictated by the direct testimony of the Respondent's own witness, ties in with 986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the indirect question of credibility-why were the two men fired) -because the top managers, like Cardemon, were all involved in the management talks that took place when those two decisions were made. On 19 June John Douglass, a field technician who uses a company van to go from one assignment to another all day long, stopped on his way home from his last assign- ment at a plaza mall where there is a restaurant called Big Boy. He stayed there several hours with the compa- ny van parked in the general parking lot, attended a union meeting held there, then had dinner, and drove home. The rule is that the technicians who use company vans for work, and there are about 22 of them at this lo- cation of the Respondent, take the van home at night, but may not use the van for "personal use." The record is replete with all kinds of situations where vans have been used, permissively, for having dinner or for other urgent situations, for by the employees. James Custer, Douglass' immediate supervisor, testified that that same evening, 19 June, after going home from work, he drove to the same plaza mall to go shopping, arriving at 6:20 p.m. When he parked his car, he recog- nized Douglass' company van parked nearby. He said he watched it a while, knew it was not supposed to be there, and then went into a store to look for something. He said he was in that store for an hour but did not find what he wanted, and he went back to his parked car I doubt anyone could spend a whole hour in a store just looking for something he could not find. He found Douglass' company van still parked in the same place, and then just sat in his own car until 10 p.m., doing nothing more than looking at it. At 10 o'clock he saw Douglass come out of the restaurant and drive away. Custer did not talk to Douglass then; he did not go near him, he just went away. Douglass was fired the next day. Why did Custer just sit and watch that man for 3-1/3 hours? He knew it was a company van, he knew it was Douglass' van; if he was not sure, there was no reason for him to worry about that, because the number on the van was all he needed to connect it with the proper technician. He knew the em- ployee was not working-at that late hour-in that area. If all he was concerned about was the violation of a company rule-as he said at the hearing, he had all he needed right away. Against these realities, Custer's ex- planation did him no credit. He said he wanted to see who was going to get into the truck, to see what the truck was doing there. His explanation does not make sense. He had to have another reason. Did he know there was a union meeting going on in that restaurant then? Did he want to see who would come out at the end of the meeting? I do not know. But one thing I am sure of-he was not telling the truth when he said he just sat 3-1/2 hours watching for no coherent reason. This business of the men not telling the truth has a direct connection with what went on the next day when, for a myriad of added reasons-all recorded but entirely unexplained-Douglass was discharged. See below. There is one other direct credibility resolution called for by the conflicting testimony that is best resolved now, because it goes to the heart of one of the two 8(a)(3) violations alleged in the complaint. On 11 July John Wagnon, whose starting time was 6 a.m., tele- phoned in about 6:30 to say he could not come to work that day. He spoke to Lawrence Loveland, his supervi- sor He told Loveland that during the night and later in the morning his wife had been very sick, had bled badly, had been taken to the hospital, and suffered a miscar- riage . He added that hospital doctors had advised him to take her to see her personal physician quickly, and that therefore he could not come to work that day. Love- land's answer, as Wagnon recalled, was "[W]ell, I hope she is okay, and here is my home phone number, my phone number." Wagnon said, at the hearing, he did not understand why Loveland gave him his personal phone number; but he took the general conversation as accept- ance of his excuse for not working that day. When Wagnon next reported for work, on 14 July, he was fired after some talking with supervisors. There, Lo- veland took the position, which he repeated at the hear- ing, that he had not given Wagnon permission to take the day off. Three weeks earlier, on 20 June, Wagnon had been given a written warning for too many late- nesses and absences, with explicit wording that the next offense would mean a 3-day suspension without pay. That warning was issued and signed by Loveland. On 25 June Wagnon was penalized for excessive absences and tardiness by suffering 3 days' suspension without pay. And again the formal punishment notice issued was signed by Loveland. Without question Loveland knew, on 11 July, that one more full absence by Wagnon meant discharge If Loveland's thinking at the time of Wag- non's 6:30 a.m. call was that the man must be discharged outright, and never mind his family responsibility and his wife's critical condition of the moment, would he have so graciously asked to be kept informed of the lady's dangerous condition? In an office memo he wrote later- the same day- "I gave him my home phone number and asked him to call me if anything serious developed." No man asks another to lean on him in moments of stress if at the same time he intends to destroy the other. Love- land's state of mind-correctly understood by Wagnon then-was that the employee could take the day off with full permission. Later, on thinking it over, with manage- ment agents helping him decide, it was deemed a good cover to get rid of the prounion man Loveland' s state- ment at the hearing that he did not intend to excuse the man's 1-day absence-absences that have time and again been excused, as this record amply shows-was just not true. This credibility fording verges as much on intent as on fact, but it is compelled by human experience no less. A supervisor does not tell a subordinate who he knows is going to be discharged to stay in touch with him. There were other unfair labor practices committed that shed light on the two discharges to be considered. Early in June Supervisor Williams asked Zais "if I knew about a union trying to come in the warehouse." When Zais answered that she did not, Williams continued, still as Zais recalled, by saying "she heard that the union was trying to come in and that Coyote was trying to start one." (Coyote is a nickname by which John Wagnon was known.) Zais also testified that on 27 June Williams again talked about the Union to her, this time in the pres- MONTGOMERY WARD 987 ence of several other employees . "Linda told us the union was trying to come into the warehouse , and if it did that we would probably close down , that Wards would not have two union locations, such as Baltimore and us, that close together, and that they would combine us in an area inbetween the two of us.... She said that our jobs would be questionable, whether we would have a job or not." Zais' testimony about that 27 June talk with Williams was corroborated by Menage, who was also present. "She said that if we went union, the plant would close down. The warehouse would close down. ... She said because they wouldn't have two unions so close together in Baltimore as a union, too, and they would close us down and get a different warehouse." Late that same week Williams again asked Menage what she thought about the Union. Zais was also questioned by James Schmidt, one of the highest officials at this location of the Respondent. In the 3 years Zais worked there as a clerk, Schmidt had never once spoken to her. Zais said he came into her office and just sat down to chat with her: He introduced himself, and he asked me what I thought about the meeting the day before with Mr. Cato, the vice-president, and we discussed the meet- ing, and he said that he heard that the union was trying to come in the warehouse, and he did not want that. He asked me what I thought about it, and I said, well, I had never really thought that much. It was kind of personal. And Mr. Schmidt said that I was a good worker, that he would like to keep me, and he said that he was going to talk to Mr. Thompson later, and he kiddingly said I'm going to ask you what he thinks about you, and I said, well, he's going to tell you that I was a good worker. Williams denied all the testimony by Zais and Menage about all that union talk. Schmidt did not appear as a witness. Of course I credit Zais , as well as Menage. The uncontradicted testimony about Schmidt's intimidating talk with Zais serves perfectly to prove it was a policy of the Respondent at that point to further its antiunion campaign by resorting to intimidating tactics. When a top official of so large a company chats amicably with a simple clerk, asks does she agree with the company's po- sition that the union is a bad thing, and, when she equivocates, tells her he is going to see that she advances in the company, the threat of discrimination should she choose to favor the union could not be clearer . Williams was simply following the pattern set by her superiors. I find that by interrogating employees about their union sentiments, and by telling them that their place of work would be closed by the Employer if they should favor the Union, the Respondent violated Section 8(a)(1) of the Act. One other incident merits little comment. Robert Kemp, a receiving clerk, testified that on 21 June Carde- mon, already mentioned above , talked to him at work: "Mike [Cardemon] asked me how the union was going. I said, 'You scared everybody off, man ' I said 'I don't think we're going to have it,' like that. He said, 'Before we get the union here, we'll close the warehouse com- pletely down.' He said, 'We'll close down and move to the Laurel somewhere."' Cardemon denied having so spoken to Kemp. I do not credit him. Not only does he stand discredited, as explained above, but his threat to this employee is in complete accord with the conduct, undenied, of a supervisor of his superior-Schmidt. In keeping with the Respondent's policy, this was but an- other violation of the statute, and I so find. Wagnon This man, a merchandise handler, was the principal ac- tivist in the union movement . He contacted the Team- sters in late May and, after talking it up with 15 or 20 other employees, he arranged a union meeting for 19 June, when six or seven men signed union cards. The very next day he was given a "corrective notice," an- other phrase for a warning, based on his earlier tardiness and absences. His last offense-a late arrival-had oc- curred 15 days earlier. Beginning that same day Wagnon started obtaining signatures to union cards in the plant, getting 10 to 15 the first day. He put union stickers on his car, usually parked in the company lot, distributed stickers to other employees, wore a Teamsters Union button at work, gave out many pamphlets to others, and did all this in the break room and lunchroom on the company premises. On 24 June he was given a 3 -day suspension without pay for having been absent the day before. His position was then, and as he repeated at the hearing, that Love- land, his immediate supervisor, had given him permission in advance of that absence. The supervisor denied that. During his 3 days off, Wagnon continued his open activi- ties on behalf of the Union in front of the plant-giving out his literature to the employees as they came and went. When he returned to work, after losing 3 days, again he talked the Union up during lunch and break pe- riods, giving out leaflets again to others. Normally, su- pervisors come and go in the break room also. On 11 July came the incident in which Wagnon called in early in the morning to tell Loveland he could not come in because of his wife's critical illness, and when Loveland asked him to keep the supervisor informed concerning the wife's progress or increasing danger. On his next workday, Monday, 14 July, when Wagnon arrived on time, at 6 a.m., he spoke to Loveland and showed the medical certificates dated 11 July about his wife's illness. He did not want Loveland to think he had made up the story. Loveland's response was "I hope she's fine, you know, I hope she's okay." Less than a half hour later- about 6:30-Wagnon was called to the office and discharged. Loveland stated clearly at the hearing that he was involved in that decision, as well as the earlier criticisms and penalty imposed on Wagnon. Considering all the related factors, I find that the Re- spondent suspended Wagnon for 3 days, and then dis- charged him, because of his union activity. That the Re- spondent was opposed to his union movement, even to the extent of committing a great number of very marked violations of the statute, could not be clearer. The intent to stop the union campaign regardless of legality is 988 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD shown again and again in this record. Wagnon was the most active of the employees. The Company may not have known that it was he who started the ball rolling, but there can be no doubt it very soon learned he was the most active of all the employees. Since Loveland ex- pressed concern about Wagnon's wife's dangerous condi- tion, as he said to the man during the critical conversa- tion on 11 July, if he in fact believed that day's absence was going to cost the man his job, the least he would have done was tell him he had better come to work. He did not. This means one thing and one thing only. After thinking it over, and after consulting with the other man- agers of the location who had been doing their share in the Company's program, he, together with his col- leagues, decided it was a good pretext case-i.e., fire the man to stop union activities and make it appear the ob- jective was to enforce a company rule. That the supervisors, or managers, have discretion in deciding whether a lateness, or an absence, is to be ex- cused was shown again and again on this record. Even the supervisors admitted as much. Tedschi, the superior who, as Wagnon testified, told him on 24 June he could have the day off to get his children enrolled in school, said the situation for permitting latenesses or absences re- quired "extenuating circumstances." On 20 June, the very day of the union meeting that Custer watched for 3-1/2 hours, Wagnon got his first warning notice. By that time his record showed 12 oc- currences-that is, violations. The rule, as written, calls for warnings after only six "occurrences ." His last viola- tion occurred on 5 June. Why did the Respondent wait so long before issuing the intimidating document? The supervisor's explanation that they were too busy means nothing to me in these circumstances . Wagnon's next criticism came on 25 June. He said he had talked to Lo- veland twice about his obligation to take 24 June off from work. Tedschi, also told by Wagnon of his prob- lem, marked the man's timecard that day as okay for the absence. Later, he changed it; the card, received in evi- dence, shows clearly it was doctored after the event. At the hearing Tedschi testified he changed it later because Loveland told him he could not recall having given per- mission. Loveland contradicted him at the hearing, saying he did not tell Tedschi he could "not recall" giving permission. The only explanation must be that the supervisors decided, again after the event, to change their stories in order to cover their ulterior motive. The facts must all be taken together. This was the very day- 25 June-when Cato came to Landover from Chicago to solicit grievances and to promise to satisfy the employ- ees' demands to coerce them into giving up the union idea. I find that, by suspending Wagnon for 3 days and by discharging him on 14 July 1986, the Respondent vio- lated Section 8(a)(3) of the Act. Finally, the record shows many other employees who were excused for absences for many reasons. There was no objective reason for treating Wagnon differently than all the others. If ever there was a case of extraordinary circumstance, this was one of them. See Associated Milk Producers, 259 NLRB 1033, 1035 (1982). John Douglass The case of John Douglass starts with the fact that to me the reason now advanced by the Respondent for having discharged him is unbelievable, and therefore false. He was a very active unioneer; the Company with- out question was opposed to the Union, even to the extent of committing calculated unfair labor practices; the discharge came at the very moment after the first regular union meeting was held by the employees, where Douglass was seen and reported by his supervisor. See Shattuck Denn Mining Corp v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966): Actual motive, a state of mind, being the ques- tion, it is seldom that direct evidence will be avail- able that is not also self-serving. In such cases, the self-serving declaration is not conclusive; the trier of fact may infer motive from the total circum- stances proved. Otherwise no person accused of un- lawful motive who took the stand and testified to a lawful motive could be brought to book. Nor is the trier of fact-here the trial examiner-required to be anymore naif than is a judge. If he finds that the stated motive for a discharge is false, he certainly can infer that there is another motive. More than that, he can infer that the motive is one that the em- ployer desires to conceal-an unlawful motive-at least where, as in this case, the surrounding facts tend to reinforce that inference. Douglass worked 12 years for this Company and not once did the Respondent find fault with him or his per- formance. It will be enough to quote from the testimony of his supervisor, Custer: He worked there for about 12 years when this hap- pened, is that correct? A. Yes. Q. And he was a pretty good employee? A. Yes, sir. Q. He never missed time from work? A. Not much, no. Q. Ever late to work? A. I don't think so . .. . Q.... Did you ever notice a problem with his coming late to work? A. No, sir. Q. Did he get along with the other employees? A. Yes, sir. Q. Was he good at fixing-what kind of stuff did he fix. A. Major appliances. Refrigeration mainly. Q. Did he do that good? A. Yes, sir. Q. Did customers call up and say he came and fixed my refrigerator but it still isn't fixed? A. It happens to everybody. Q. Often? A. Here and there, yes. Q. Well how about compared to other employes? Did they call up more or less frequently for John Douglass? MONTGOMERY WARD 989 A. Probably less frequently. Accordingly, the picture shows a perfectly desirable employee fired without notice or warning in advance. A man named Hoffman also worked under Supervisor Custer but was not authorized to take his company van to his house at night. One day he did that, against the rules, because he was using the van "for personal rea- sons." He had an accident in front of his house. Hoffman was neither fired nor disciplined for such personal use of the company van. At the hearing Custer said he did not know of any difference between the Hoffman incident and that of Douglass. Logan was a field technician like Douglass, also taking his van home at night. One day Minasi, the company su- pervisor over Custer who later participated directly in Douglass' discharge, went to Logan's home looking for a certain company tool that was needed. But the van was not there. It was Logan's day off from work, and the van was not to be used for "personal use." Minasi learned that Logan had driven the van away somewhere. Logan did not testify and Minasi tried to explain the inci- dent on the ground that Logan later told him-Minasi- that he had taken the truck somewhere to have it cleaned. This hearsay evidence will not do to explain away the further admission by the supervisor that inside Logan's van that day he saw a barbecue pit, admittedly not a company tool. Like Hoffman, Logan also went off scot free-with neither punishment nor criticism. That Douglass was treated differently from his co- workers is clear. All Douglass did on 19 June was to stop on the direct route home from his last assignment and have dinner. There is much evidence in this record that employees did that at times, without criticism. The only difference in Douglass' case is that he stayed at the same location much longer to attend the union meeting. But insofar as the Company's interests in the man was concerned, this made no difference; the van was never moved from near the restaurant. A look at the Company's discharge records involving Douglass serves to strengthen the finding that its now advance reason is false . Again and again the management people repeated the reason for discharge was personal use of the van, precisely quoting its written rule. One document-labeled corrective action notice-signed by Custer and a higher supervisor, says the reason was "un- authorized use of a company vehicle . . . left unattend- ed." What did the fact the van stood by itself-unattend- ed-on the parking lot have to do with the personal use rule? Another document, also labeled corrective action notice, is dated 23 June, also signed by Custer and the highest supervisor. This one adds another offense by Douglass: "Fraudulent-deceptive practices." There is not a word of explanation in the record for this added and totally different reason for Douglass' discharge. The supervisors themselves were unable at the hearing to ex- plain it. This means, of course, that management knew its first recorded reason was not a good one. The only reason I can see in this record for the Re- spondent's change of position is certain testimony by Minasi. When told, on 20 June, that he had violated the rule by stopping for dinner, Douglass protested on the. ground that Minasi had told him he was permitting him to do that. When asked by the other managers had he so told Douglass, Minasi equivocated, saying both no and that perhaps Douglass had "misinterpreted " what he had said. His own handwritten statement, added to the disci- pline document, reads: "This may have been misinter- preted by Mr. Douglass." With all this-a very desirable employee summarily dismissed without a word of warning after 12 years of perfect service; disparate treatment of one man against a number of others who committed worse offenses-if of- fense it was; and doubletalk in the Respondent's own records regarding why it did what it did-the conclusion is inescapable that the supervisors were not telling the truth about why Douglass was fired. But a reason they had to have. In the light of the timing-right after the man came out of a union meeting, the Company's knowl- edge of the union activity, interrogation of employees before Douglass was discharged, and the Respondent's proven intent to put a stop to the union movement-the only rational explanation of the dismissal of this man is furtherance of the Company's program to ensure the end of the union activity. On 6 June the Company held a meeting with a number of supervisors present, including Minasi; 30 employees were present. Douglass testified, without contradiction, as follows: He [Minasi] was saying he was getting a lot of flak from the other technicians that they didn 't want to do this. They didn't want to do that. They were overworked, and he said he's not going to listen to it. If you don't like the way things are run around here, Anna Curry [personnel manager] is sitting right here . . . come up here. He'll fill out papers and pay you, and you can hit the road. Douglass spoke up to complain that "the work was unreal. It was getting too much." As the meeting was ending Douglass spoke up with "What we need is a union." Minasi testified he did not hear the man make that statement. His testimony is no more credible than that of Custer, that after sitting for 3-1/2 hours looking at Douglass' van in the parking lot 2 weeks later in order to "see who was going to get into the truck" he had no knowledge of a union meeting having taken place. I have no doubt the managers knew all along of Douglass' union activity. In conclusion I find that by discharging Douglass the Respondent violated Section 8(a)(3) of the Act. THE REMEDY The Respondent must be ordered to cease and desist from again committing the unfair labor practices found. John Wagnon and John Douglass must be reinstated to their former positions, and they must be made whole for any loss of earnings they suffered in consequence of the illegal discrimination against them . Because of the nature of the unfair labor paractices committed, the Respondent must be ordered to cease and desist from in any other manner violating the statute hereafter. 990 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Respondent set forth in section III, above, which occurred regarding the operations of the Respondent described in section 1, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce CONCLUSIONS OF LAW 1. By suspending John Wagnon without pay for 3 days and by discharging John Wagnon and John Douglass, the Respondent has violated, and is violating, Section 8(a)(3) of the Act. 2. By the foregoing conduct, by interrogating its em- ployees concerning their union activities, by telling em- ployees the Respondent is aware of their individual union activity, by offering to escort employees to their union hall to assist them in canceling their union authori- zation cards, by soliciting grievances from the employees to avoid bargaining with their chosen representative, by granting improved conditions of employment such as medical insurance, improved safety equipment on oper- ation machinery, and faster and more efficient evaluation and pay, by inviting its employees to form an employee committee to deal with the Company concerning condi- tion of employment, and by threatening to close its plant and to discharge its employees, all for the purpose of in- ducing its employees to abandon their prounion activity, the Respondent has violated and is violating Section 8(a)(1) of the Act. 3. The above-described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]