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

• Decision Date: 18 March 1957
• Docket Number: Docket 24251.,No. 211,211
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MONTGOMERY WARD & CO., Inc., Respondent.
• Court: U.S. Court of Appeals — Second Circuit

242 F.2d 497 (1957)

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

No. 211, Docket 24251.

United States Court of Appeals Second Circuit.

Argued January 11, 1957.

Decided March 18, 1957.

Theophil C. Kammholtz, Gen. Counsel, Stephen Leonard, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Samuel M. Singer and Florian J. Bartosic, Attys., N. L. R. B., Washington, D. C., for petitioner.

Charles J. Barnhill and David L. Dickson, Chicago, Ill., and T. W. Madden, New York, N. Y., for respondent.

Before CLARK, Chief Judge, and LUMBARD and WATERMAN, Circuit Judges.

LUMBARD, Circuit Judge.

The National Labor Relations Board petitions this court for enforcement of its order of February 29, 1956 that Montgomery Ward (1) cease and desist from (a) discouraging its employees from union membership, by discriminatory hire, discharge and reinstatement; (b) interrogating employees about their union membership, activities or views, and (c) interfering in any manner with their rights to self organization and collective bargaining, in violation of § 8(a) (1) and § 8(a) (3),¹ National Labor Relations Act, 29 U.S.C.A. § 158; (2) reinstate employees Frank Felker and Irene Witter, whom the Board found to have been discharged for union activity in violation of § 8(a) (3); and (3) post the usual notices of compliance. In its decision, the Board also found that Montgomery Ward had interfered with, restrained, and coerced its employees in violation of § 8(a) (1) by store manager Rumble's questioning of certain employees as to union activity.

The central issue in this case is the motive for the discharge of Frank Felker and Irene Witter. The Board, affirming the Trial Examiner, found that the discharge was for union activity, and rejected Montgomery Ward's claim that it was for reasons of efficiency and economy.

We grant enforcement of the Board's order as the record discloses substantial evidence to support the findings of the Board.

In addition to its mail order business, Montgomery Ward operates many retail stores, including one in Binghamton, New York. A basic store chart sets up the organization of each store. The store manager may hire extra or temporary help only to the extent of sales above a "basic" amount. The Trial Examiner found that the "basic" for the Binghamton store was revised twice a year; the revision most pertinent to this case is that of July 1954.

Felker, an excellent salesman who had won numerous prizes and rewards from the company, had been with Montgomery Ward from 1942 to the date of discharge except for a brief period in 1953 after which he returned to his former position at an increase in salary. He was in charge of the farm equipment department of the Binghamton store at the time of his discharge; on July 1 he was asked to take over the toy department as well.

Witter had no fixed assignment but helped out in various departments of the store, working in about twenty different capacities at one time or another. She worked steadily for Montgomery Ward from 1950 until her discharge on August 19, 1954, two days after the election.

In June 1954, Retail Clerks International Association, Local No. 1687, AFL, started to organize Montgomery Ward's Binghamton store, filed a petition for certification on July 16 and in an election on August 17, succeeded in becoming the bargaining representative. Felker and Witter, the two discharged employees, were strong advocates of the Union. Both solicited members, particularly during August at the height of the union organizing campaign. Felker was a particularly active solicitor, going so far as to advance money to one fellow-employee to enable him to join the Union.

A few weeks prior to the election, a department head named DuFour, who at the hearing admitted his strong anti-union sentiments, told Felker that "the Company knows all of those that (sic) are in favor of the Union and they will lose their jobs." At another time he told Felker that if the Union won, Montgomery Ward would close the store. DuFour also told Witter that if the Union won, she would lose her job because of her union activities. About two weeks before the election, he told an employee named Bright that the company knew who the union people were, and that if the Union won, certain people including Felker, would be automatically squeezed out. This could be done, DuFour is reported by Bright to have said, by "putting two jobs — two departments together and eliminate that job."

In addition several other employees testified that store manager Rumble asked them whether they had joined the Union.

On Monday, August 16, Felker started a week's vacation, but returned on August 17 to vote in the election. On his return to work on August 23 he was told that he had been discharged by order from the New York office. In place of his $70 a week position he was offered a part-time job at $20 a week which offer he refused. About ten days later Felker asked for his dismissal pay from store manager Rumble who said he could not give it to him, adding "Frank, I hope you don't hold anything against me. As far as I am concerned, there was nothing wrong with your work."

Four days after Felker was discharged Montgomery Ward advertised for "full or part-time help." About a month after the discharge, Montgomery Ward hired a replacement for Felker at $50 per week plus commissions.

Montgomery Ward dismissed Witter on August 19, two days after the election. The day of Witter's dismissal, DuFour had commented on the fact that she was wearing a union button and said, "I wouldn't have anything to do with the Union or anybody in it, if I were you." At 6:00 that evening, she was told she was being released because she was on a "non-basic payroll" and couldn't be carried any longer, presumably because the store was not earning enough over the basic requirements. Store manager Rumble later testified she was discharged because her work was unsatisfactory. About two weeks after her discharge Montgomery Ward hired a replacement for Witter.

In explanation of the discharge of Felker, Montgomery Ward contended that some time between March and June it had been decided by the regional operating manager and the district manager that the farm equipment and toy departments should be combined with the paint department, because it was concluded that the sales for the farm equipment department during the coming half-year would fall off. This amalgamation eliminated one department head and the Company claimed it was necessary to choose between McGraw, who headed the paint department and Felker. Since McGraw was a better all-around man, the Company decided it would discharge Felker, who was earning $70 per week plus commissions, and retain McGraw at $60 a week, allowing him an extra $20 a week out of basic for a part-time man.

The Company explained Witter's discharge on the ground that it was necessary to reduce the payroll and that Witter's shortcomings as an employee made her the appropriate person to cut.

The Trial Examiner found that Felker and Witter had been discharged not because of the revision in the basic store organization, but for their union activities. He also found that Rumble's questions as to union membership constituted an interference with the exercise of employee rights under § 7, in violation of § 8(a) (1), and that DuFour's questions and threats constituted coercion, also in violation of § 8(a) (1).

The Board affirmed the decision as to Rumble, but held that because DuFour had voted in the representation election, he was probably considered by the employees as one of them rather than as part of management. Hence, DuFour's statements to them could not be considered as management coercion. However, the Board held that despite his voting in the election, his supervisory status could be considered in determining whether his...