Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

Jan 16, 1942

38 N.L.R.B. 297 (N.L.R.B. 1942)

In the Matter Of MONTGOMERY WARD & CO., INCORPORATED and
UNITED MAIL ORDER, WAREHOUSE AND RETAIL EMPLOYEES'
UNION, LOCAL No. 20, AFFILIATED WITH THE C. I. O.
Cases Nos. R-3256 and R-3257.-Decided January 16, 1942
Jurisdiction : general merchandise mail order and department store industry.
Investigation and Certification of Representatives : existence of question: dispute
as to appropriate units; refusal to accord union recognition; eligibility to vote
to be determined by stipulated pay roll date; part-time employees who have
been employed in the appropriate units for sixty days prior to the stipulated
pay roll date to be eligible to vote; election necessary.
Unit Appropriate for Collective Bargaining : (3) all employees of the Chicago Mail
Order House of the Company including the fashion department, but excluding
the employees in the Administration Building, the Merchandise Mart Building,
the Schwinn Warehouse, the medical department, and all confidential and
supervisory employees; (2) all employees of the Chicago Retail Department
Store of the Company, including the receiving and shipping departments of
the store, but excluding all confidential and supervisory employees; telephone
operators in both units included notwithstanding the desire of the Union for
their exclusion, since they are not confidential employees.
Mr. Stephen M. Reynolds, for the Board.
Mr. Brooks Wynne, of Chicago, Ill., for the Company.
Mr. Francis Heisler and Mr. Stanley F. Evans, of Chicago, Ill., for
the Union.
Mr. Gerard J. Manack, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On September 9, 1941, United Mail Order, Warehouse and Retail
Employees' Union, Local No. 20, affiliated with the C. I. 0., herein
called the Union,' filed with the Regional Director for the Thirteenth
Region (Chicago, Illinois) two petitions alleging that questions affect-
ing commerce had arisen concerning the representation of employees
in the Chicago Retail Department Store and the Chicago Mail Order
House of Montgomery Ward & Co., Incorporated, Chicago, Illinois,
herein called the Company, and requesting an investigation and cer-
tification of representatives pursuant to Section 9 (c) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. On Octo-
38 N. L R. B., No. 64.
297
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ber 28, 1941, the National Labor Relations Board, herein called the
Board, acting pursuant to Section 9 (c) of the Act, and Article III,
Section 3, of National Labor Relations Board Rules and Regula-
tions-Series 2, as amended, ordered an investigation and authorized
the Regional Director to conduct it and to provide for an appropriate
hearing upon due notice, and further ordered, pursuant to Article III,
Section 10 (c) (2), of the said Rules and Regulations, that the two
cases be consolidated.
On October 30, 1941, the Regional Director issued-a consolidated
notice of hearing, copies of which were duly served upon the Com-
pany and the Union. Pursuant to notice, a hearing was held on
November 6, 1941, at. Chicago, Illinois, before W. P. Webb, the
Trial Examiner duly designated by the Chief Trail Examiner. The
Company and the Union were represented by counsel and participated
in the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing upon the issues
was afforded all parties. During the course of the hearing the Trial
Examiner made various rulings on motions and objections to the
admission of evidence. The Board has reviewed all the rulings of
the Trial Examiner and finds that no prejudicial errors were com-
mitted. The rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Montgomery Ward & Co., Incorporated, an Illinois corporation
having its principal executive offices in Chicago, Illinois, is engaged
in the purchase, sale, and distribution of general merchandise I at
retail through the media of mail order houses, catalog order offices,
and retail stores. In connection with such distribution, the Company
operates nine mail order houses, four factories, and over 650 retail
stores throughout the United States. This proceeding involves two
divisions of the Company's business in Chicago, Illinois, namely, the
Chicago Mail Order House and the Chicago Retail Department
Store. For the fiscal year ended January 31, 1941, the Chicago
Retail Department Store received 80 percent of the merchandise
stocked in the store from points outside the State of Illinois, and its
sales of merchandise amounted to approximately $3,500,000 of which
approximately 5 percent were sales to points outside the State of
Illinois. During the same fiscal period, the Chicago Mail Order
I The merchandise handled by the Company includes clothing , dry goods, furniture , home furnishings,
household equipment , plumbing , heating, and farm equipment and supplies, building materials, jewelry,
musical instruments , automobile accessories , electrical supplies, books , stationery , drugs, cosmetics , sport-
ing goods , luggage, tools , hardware , and other goods.
MONTGOMERY WARD & CO. 299
House received 80 percent of its merchandise from outside the State
of Illinois, and its sales amounted to approximately $64,000,000, of
which approximately 70 percent represented sales and shipments to
points outside the State of Illinois.
II. THE ORGANIZATION INVOLVED
United Mail Order, Warehouse and Retail Employees' Union,
Local No. 20, affiliated with the C. I. 0., is a labor organization
chartered by the United Retail and Wholesale Employees of America,
affiliated with the Congress of Industrial Organizations. It admits
to membership employees of the Company in the Chicago Mail Order
House and the Chicago Retail Department Store.
III. THE QUESTIONS CONCERNING REPRESENTATION
On September 8, 1941, the Union, claiming to represent a majority
of the employees of the Company in the Chicago Mail Order House
and the Chicago Retail Department Store, requested sole bargaining
rights for the employees in each of the said divisions of the Company.
On the same date, the Company notified the union that it questioned
the alleged majority of the Union in said units and that it was not
in complete agreement on the units claimed by the Union to be appro-
priate.
A statement prepared by the Regional Director and introduced
into evidence at the hearing discloses that the Union represents a
substantial number of employees in each of the appropriate units.'
We find that questions have arisen concerning the representation
of employees of the Company.
IV. THE EFFECT OF THE QUESTIONS CONCERNING REPRESENTATION
UPON COMMERCE
We find that the questions concerning representation which have
arisen, occurring in connection with the operations of the Company
described in Section I above, have a close, intimate, and substantial
2 For the Chicago Mail Order House unit , the Umon submitted 2,700 signed authorization cards and
authorization slips, dated during the period between September 1939 and October 1, 1941. On the basis of
a spot check of more than 400 cards , at least 1,700 of the 2,700 signatures thereon are the names of persons
appearing on the Company 's pay roll of September 19, 1941, for the Mail Order House , containing 7,000
names, all of whom the Company contends , are in the appropriate unit. The Union contends , however,
that approximately 2,500 of these employees should be excluded from the unit , as set forth in Section V
below
For the Chicago Retail Department Store the Umon submitted 150 signed authorization cards and au-
thorization slips, dated during the period between September 1939 and October 1, 1941 Of the signatures
appearing thereon, 78 are the names of persons appearing on the Company 's pay roll of September 23, 1941,
or the retail store, containing the names of 300 persons.
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relation to trade, traffic, and, commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce. -
V. THE APPROPRIATE UNITS
A. The Chicago Mail Order House
The Union and the Company agree that employees in the Mail
Order House and 'warehouses, including employees in the fashion
department, constitute an appropriate unit separate from employees
in the Administration Building, the Retail Store, the Merchandise
Mart Building, the Schwinn Warehouse,3 the retail store receiving
and shipping departments of the South Building, and the medical
department.4 The Union and the Company also agree to the exclu-
sion from this unit of the branch manager, the branch operating man-
ager, the branch merchandising manager, and the branch comptroller.
The Union would exclude and the Company include the other
confidential and supervisory employees.5 Pursuant to our usual prac-
tice under such circumstances as are here disclosed, we find that the
confidential and supervisory employees should be excluded from the
unit.6
The Union would also exclude as confidential employees the tele-
phone exchange. operators. The Company opposes their exclusion.
Since we believe that they are not confidential employees, we. will
include them.
We find that all employees of the Chicago Mail Order House,
including the fashion department and the telephone exchange oper-
ators, and excluding the employees in the Administration Building,
Merchandise Mart Building, Schwinn Warehouse, and medical
department, and the branch manager, the branch operating manager,
the branch merchandising manager, the branch comptroller, and the
other confidential or supervisory employees, constitute an appro-
priate unit for the purposes of collective bargaining, and that said
unit will insure to employees of the Company the full benefit of their
right to self-organization and to collective bargaining and will other-
wise effectuate the policies of the Act.
3 The Schwmn Warehouse was found to be a separate unit by the Board in a former proceeding Matter
of Montgomery Ward & Co. and United Mail Order, Warehouse and Retail Employees Union, etc., 25 N. L. R. B.
318
4 The medical department , as herein used , includes nurses and doctors.
i The Union asserts, the Company does not deny, and upon the entire record we find, that the following
are confidential or supervisory employees . executives , secretaries to executives , department heads , assistant
department heads, supervisory and assistant supervisory employees , foremen and assistant foremen, house
police, merchandisers , buyers, rebuyers , assistant buyers, assistant rebuyers , trainees , timekeepers, and
personnel employees in the fashion department
A Matter of Elkland Leather Company, Inc. and Oil Workers International Union Local 266, 8 N L R B.
519, Matter of The Electric Auto-Late Company and International Union, United Automobile Workers o
America No 12, 9 N. L. R B. 147.
MONTGOMERY WARD & CO. 301
B. Retail Department Store
The Union and the Company agree that employees in the Retail
Department, Store, including the receiving and shipping departments
in the South Building, constitute an appropriate unit. The Union
and the Company also agree upon the exclusion therefrom of the
manager, assistant operating manager, and assistant merchandising
manager. -
The Union would exclude and the Company include the other,
confidential and supervisory employees.' , Pursuant to our usual
practice under such circumstances as are here disclosed, we find that
the confidential and supervisory employees should be excluded from
the unit.'
The Union would also exclude from the unit as confidential em-
ployees the telephone operators. The Company opposes this ex-
clusion. Since ,we believe that the telephone operators are not con-
fidential employees, we shall include them in the unit.
We find that all employees of the Chicago Retail Department
Store, including the receiving and shipping departments of the store
in the South Building and the telephone operators, and excluding the
manager, assistant operating manager, assistant merchandising man-
ager, and the other confidential or supervisory employees, constitute
a unit appropriate for the purposes of collective bargaining , and that
such unit will insure to employees of the Company the full benefit of
their right to self-organization and to collective bargaining and will
otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by, and we shall accordingly direct, an
election by secret ballot.
For the purpose of determining eligibility to vote in the election,
the parties stipulated that the pay roll of September 19, 1941, be
used for the Mail Order House unit, and that the pay roll for Sep-
tember 23, 1941, be used for the Retail Department Store unit.' It
was further stipulated that all extra and part-time employees who
were regularly employed as such for a period of sixty (60) days prior
to the date of each of the said pay rolls should be included in each
pay roll. The Company has prepared a pay-roll list for each unit as
of said dates, copies of which are in the possession of the Regional
7 The Union asserted , the Company did not deny , and upon the entire record we find, that the following
are confidential or supervisory employees : executives , floor men, merchandisers , buyers, assistant buyers,
personnel employees, cashiers , timekeepers , house police, and watchmen.
8 See footnote 6, p. 300
4 Subsequent to the hearing , the Company asked that different eligibility dates be chosen, but the Union
has refused to loin in this request to abrogate the parties' agreement.
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director. Upon the entire record, we find that the foregoing stipu-
lation should be accepted. We shall therefore direct that all employ-
ees who were employed by the Company in the Mail Order House
unit during the pay-roll period ending September 19, 1941, shall be
eligible to vote in said unit; that all employees who were employed
by the Company in the Retail Department Store unit during the
pay-roll period ending September 23, 1941, shall be eligible to vote
in said unit; and that each pay roll shall include such extra and part-
time 'employees who were regularly employed in each unit as such
for a period of sixty (60) days prior to the dates of the respective pay
rolls, subject to such limitations and additions as are hereinafter set
forth in our Direction.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees in the Chicago Mail Order House and the
Chicago Retail Department Store of Montgomery Ward & Co.,
Incorporated, Chicago, Illinois, within-the meaning of Section 9 (a)
and Section 2 (6) and (7) of the National Labor Relations Act.
2. All employees of the Chicago Mail Order House of the Com-
pany, including the fashion department and telephone exchange oper-
ators, and excluding the employees in the Administration Building,
Merchandise Mart Building, Schwinn Warehouse, and medical depart-
ment, and the branch manager, the branch operating manager, the
branch merchandising manager, the branch comptroller, and the other
confidential or supervisory employees, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act.
3. All employees of the Chicago Retail Department Store, includ-
ing the receiving and shipping, departments of the store in the South
Building and the telephone operators, and excluding the manager,
assistant operating manager, assistant merchandising manager, and
the other confidential or supervisory employees, constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Regulations- Series 2, as
amended, it is hereby
MONTGOMERY WARD & CO. 303
DIRECTED that, as part of the investigation authorized by the
Board to ascertain representatives for the purposes of collective bar-
gaining with Montgomery Ward & Co., Incorporated, Chicago,
Illinois, separate elections by secret ballot shall be conducted as early
as possible, but not later than thirty (30) days after the date of this
Direction of Election, under the direction and supervision of the
Regional Director for the Thirteenth Region, acting in this matter
as agent for the National Labor Relations- Board, and subject to
Article III, Section 9, of said Rules and Regulations:
(1) Among all employees of the Chicago Mail Order House of the
Company, including the fashion department and the telephone ex-
change operators, who were employed in the Mail Order House dur-
ing the pay-roll period ending September 19, 1941, including such
extra and part-time employees who were regularly employed as such
for a period of sixty (60) days prior thereto, and further including
employees who did not work during said pay-roll period because they
were,ill or on vacation or in military service or training for the United
States, or temporarily laid off, but excluding the employees in the
Administration Building, Merchandise Mart Building, Schwinn Ware-
house and medical department, and the branch manager, the branch
operating manager, the branch merchandising manager, and the
branch comptroller, and the other confidential or supervisory em-
ployees, and employees who have since quit or been discharged for
cause, to determine whether or not they desire to be represented by
United Mail Order, Warehouse and Retail Employees' Union, Local
No. 20, affiliated with the C. I. O.
(2) Among all employees of the Chicago Retail Department Store
of the Company, including the receiving and shipping departments of
the store in the South Building and the telephone operators, who were
employed in said store during the pay-roll period ending September
23, 1941, including such extra and part-time employees -who were
regularly employed as such for a period of sixty (60) days prior
thereto, and further including employees who did not work during
such pay-roll period because they were ill or on vacation or in active
military service or training of the United States, or temporarily laid
off, but excluding the manager, assistant operating manager, assistant
merchandising manager, and the other confidential or supervisory em-
ployees, and employees who have since quit or been discharged for
cause, to determine whether or not they desire to be represented by
United Mail Order, Warehouse and Retail Employees' Union, Local
No. 20, affiliated with the C. I. O.