Montgomery Ward and Co.

National Labor Relations Board - Board Decisions

Jun 30, 1952

99 N.L.R.B. 1490 (N.L.R.B. 1952)

1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CHAIRMAN HERZOG and MEMBER STYLES, dissenting :
This is a matter of first impression, calling for an interpretation of
a recent amendment to the Act. We disagree with the majority's
holding that the instant petition should be dismissed because, due only
to the incumbent union's own noncompliance with Section 9 (h), there
is no legally enforceable union-security agreement in effect.
We believe that our colleagues' interpretation of Section 9 (e) (1)
of the Act, as amended in 1951, is much too literal, and leads to a result
wholly at variance with the real intent of Congress. As we read the
legislative history, we perceive a congressional desire to compensate
in part for the elimination of the earlier mandatory union-shop au-
thorization elections by retaining the safety valve of permissive deau-
thorization elections, to be conducted once 30 percent of the affected
employees manifest an initial desire to eliminate the union-security
provision. In amending the Act, Congress took such pains to make
certain that noncompliance would continue to invalidate a union-secu-
rity provision, that we cannot believe it also intended the paradoxical
result of having that very noncompliance destroy employees' oppor-
tunity to escape from the practical consequences of the presence of such
a provision.
This Board has repeatedly recognized the restraining effect inherent
in the mere existence of a union-security clause which fails to meet the
requirements of Section 8 (a) (3) of the Act .6 It is the restraint and
compulsion to which employees are subjected, whether by an enforce-
able or by an unenforceable union-security clause, against which Con-
gress sought to safeguard employees, by affording them this ready
means of escape through a deauthorization election. We see no logic
in our colleagues' construction of the 1951 amendment, which would
place a noncomplying union in a better position than a complying
union whenever a deauthorization election is sought. For the majority
would have directed such an election in this case if Local 415 had only
been in compliance. We would not permit that union to use its own
omission as a shield.
s C. Hager C Sons Hinge Manufacturing Company, 80 NLRB 163, and cases following.
MONTGOMERY WARD AND COMPANY and INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, LOCAL UNION 1471, AFL, PETITIONER.
Case No. 17-RC-1323. June 30, 1950
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Cyrus A. Slater,
99 NLRB No. 171.
MONTGOMERY WARD AND COMPANY 1491
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Houston, Styles, and Peterson].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent employees of
the Employer.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
The Petitioner seeks a unit of three television service and installa-
tion men employed in the service department at the Employer's Omaha,
Nebraska, operation. The Employer contends that the employees
sought do not constitute an appropriate unit.
The Employer is engaged in the sale and distribution of numerous
items of general merchandise. In Omaha, it operates a retail store,
and in conjunction therewith, a service station and a warehouse. There
are 52 workers in the main store, 14 at the service station, which is
located 1 block from the store, and 1 at the warehouse. There has been
no history of collective bargaining with respect to any of the Omaha
personnel.
The service department is situated on the second floor of the service
station 1 and performs the repair and servicing of mechanical devices
and appliances sold with service warranties 2 The department in-
cludes the service manager, who reports to the assistant manager of
the store, two service clerks, and five servicemen. The service man-
ager, admittedly a supervisor, is responsible for the operation of the
department and does some service work. The two clerks take service
calls and perform all clerical work in the department. Two of the
servicemen work on appliances other than television sets and radios.
As to the remaining three servicemen-who are those requested by the
Petitioner-Johnson and Ueberrhein spend 90 to 95 percent of their
time on television repairs and installations, and the rest of their time
on other appliances; and Olson, who was hired as a radio serviceman,
I The ground floor of the service station is occupied by six employees engaged in the sale
and installation of automobile accessories
2 These include such items as refrigerators , washing machines , lawn mowers , garden
tractors , roasters , toasters , stoves, sewing machines , vacuum cleaners , radios, television
sets , and all small appliances
1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
devotes 10 percent of his time to minor television repairs, and spends
most of the rest of his time repairing radios.3
When they are hired, the television servicemen, like other service-
men in the department, are generally required to have some familiarity
with the work they are to perform. Johnson and Ueberrhein had
certain schooling, not described in the record, before working for the
Employer,-and Olson attended a radio school while in the Army Air
Force. Johnson and Ueberrhein also received limited on-the-job
training.4 However, the Employer does not require the servicemen to
have any certificate or diploma, and it has no standard recognized
training or apprenticeship program. As noted above, the three serv-
icemen in question also work on other types of equipment sold by the
Employer. Like the other employees in the store, the television
servicemen are required to punch a time clock, and they enjoy the same
benefits, and are subject to substantially the same terms and conditions
of employment and personnel policies.
The record fails to establish that the employees sought by the
Petitioner possess a degree of skill sufficient to constitute them a
recognized craft group. Nor do they constitute a distinct and homo-
geneous group, with interests different from those of the other em-
ployees, such as would entitle them to separate representation. We
find, therefore, that they do not constitute a unit appropriate for
purposes of collective bargaining,5 and we shall dismiss the petition.
Order
IT Is HEREBY ORDERED that the petition filed by International Brother-
hood of Electrical Workers, Local Union 1471, AFL, be, and it hereby
is, dismissed.
3 In addition to service work, all employees of the department participate in the upkeep
and maintenance of the appearance of the service department.
, Johnson attended several week -long district service schools, and Ueberrhein attended
a week-long school at the Omaha store, conducted by the Employer.
5 Dowd's Radio and Electric Company, 91 NLRB 640, Montgomery Ward & Co., Inc., 89
NLRB 1370 , and cases cited therein.
NATIONAL CONTAINER CORPORATION OF WISCONSIN and INTERNATIONAL
ASSOCIATION OF MACHINISTS, AFL, PETITIONER. Cases NOS.
18-RC-1146 (voting group a) and 18-RC-1150 (voting group g).
June 30,1952
Supplemental Decision and Order
On February 26, 1952, pursuant 'to a Decision and Direction of
Elections 1 issued herein by the Board, elections were conducted, under
1 97 NLRB 1009.
99 NLRB No. 172.