National Labor Relations Bd. v. Montgomery Ward & Co.

• Decision Date: 29 October 1951
• Docket Number: Docket 22080.,No. 59,59
• Citation: 192 F.2d 160
• Parties: NATIONAL LABOR RELATIONS BOARD v. MONTGOMERY WARD & CO., Inc.
• Court: U.S. Court of Appeals — Second Circuit

192 F.2d 160 (1951)

NATIONAL LABOR RELATIONS BOARD v. MONTGOMERY WARD & CO., Inc.

No. 59, Docket 22080.

United States Court of Appeals Second Circuit.

Argued October 10, 1951.

Decided October 29, 1951.

George J. Bott, General Counsel, David P. Findling, Associate General Counsel, A. Norman Somers, Asst. General Counsel, Elizabeth Weston, and Marshall J. Seidman, all of Washington, D. C., for National Labor Relations Board.

John A. Barr, David L. Dickson, Donald W. Alfrin, and Harold W. Bancroft, all of Chicago, Ill., for respondent.

Before CHASE, Circuit Judge, and GODDARD and DIMOCK, District Judges.

CHASE, Circuit Judge.

The National Labor Relations Board found that one Victor, an employee of the respondent, had been discharged, in violation of § 8(a)(3) of the Act, 29 U.S.C.A. § 158(a)(3), because of her activity in assisting a union to organize the employees at the respondent's store in Olean, New York, and ordered her reinstated with back pay. The Board also found that the respondent had violated § 8(a)(1), of the Act, 29 U.S.C.A. § 158(a)(1), by discharging Victor as well as by interrogating other employees concerning the organizational activities of the union in the Olean store and ordered the respondent to cease and desist from so doing and to post the usual notices of its compliance. This petition to enforce the order raises two questions: (1) Whether there was substantial evidence to support the finding of the trial examiner, which the Board adopted, that Victor was discharged because of her union activity, and not for cause; and (2) whether, apart from such evidence, the inquiries made of other employees concerning the activities of the union in the store violated § 8(a)(1).

It appears that in the respondent's store at Olean there were, during the period here involved, about 38 sales people who were allocated among 26 different sections of the selling floor space, called departments. Of the 38 sales personnel, 18 were called department heads and had responsibility for one or more departments; sales girls not department heads were called "second girls" and were assigned to assist in the various departments in accordance with business requirements. Both classes of employees worked the same hours, under the same conditions except that department heads were paid more.

The discharged person in this instance had first been employed by the respondent as a sales girl on July 1, 1946. Within two weeks she was promoted to department head with an increase in pay. Subsequently, she was given two "merit increases" in pay during 1947 and two more during 1948. Victor continued to work for the respondent until June 11, 1949 when she began her regular annual vacation of two weeks. Two days later the manager hired a girl to take her place. When Victor learned of this fact, on June 22, she called the manager to inquire if that meant that she had been discharged. When told that it did, she asked for the reason but was not given any and, in fact, a false reason was entered on her personnel record.

At the hearing, the respondent introduced evidence to show that the discharge was for cause, the cause alleged consisting of an accumulation of complaints by other employees of insulting remarks made by Victor to them, of insubordination toward the assistant manager of the store, of neglect of her duties and of a decrease in her sales, though just what this last factor amounted to was not shown. Other evidence indicated that the decrease in Victor's sales might have been part of a general sales decrease or due to the transfer to another department of about 30% of the merchandise in Victor's department. Neither the trial examiner nor the Board considered the alleged sales decrease, together with the other evidence of her derelictions, to add up to more than a series of trivial incidents over a considerable period of time which, whether or not condoned by the admitted failure of the management to reprimand or warn her, would not have given rise to her discharge. The testimony of the manager of the store and of the respondent's district supervisor that they had some months before June, 1949 decided to discharge Victor as soon as a replacement could be found was not credited in view of the evidence which indicated that she was discharged because of her union activity.

The evidence relied upon by the Board was to the effect that early in May, 1949, McIntyre, a general organizer for the A. F. of L., was informed by Cummings, a brother-in-law of Victor and member of an A. F. of L. union but not an employee of the respondent, that the respondent's employees at Olean desired to join a union. Later in the month McIntyre discussed with Victor and another employee the organization of respondent's employees at the Olean store and, about a week later, Victor prepared and gave to McIntyre a list of the employees in the store. About June 1, McIntyre sent each of the employees a letter urging that they join his union and enclosed a membership application card. Victor signed and returned her card on the same day.

After that, Shaffer, a department head in the store, took her application card to the manager who looked at it and commented, "You got one." This same employee, Shaffer, had previously reported to the manager that Victor's brother-in-law, Cummings, had spoken to her about joining the union and the manager requested Shaffer to point out Cummings to him, which she later did. Another sales girl in the store, one Krott, also took her letter to the manager and told him she had received an application blank. He remarked that he didn't like the union and told her "about the proceedings of...