Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

Jun 7, 1943

50 N.L.R.B. 163 (N.L.R.B. 1943)

In the Matter Of MONTGOMERY WARD & CO., INCORPORATED and MAIL
ORDER , WAREHOUSE AND DISTRIBUTION WORKERS UNION, I. L. W. U.,
C.I.O.
Case No. R-5200.-Decided June 7, 1943
Mr. D. M. Norton, of Chicago, Ill., for the Company.
,
Messrs. I. Duke Avnet, Harold Buchman, and John Brinton, of
Baltimore, Md., for the I. L. W. U'
Messrs. Charles Walters, Joseph Conlon,. and Nat Klein, of Balti-
more, Md., for the United.
Mr. Joseph Gillis, of Baltimore, Md., for the AFL.
Mr. Glenn L. Moller, of counsel to the Board.
e,
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Mail Order, Warehouse and Distri-
bution Workers Union, I. L. W. U., C. I. 0., herein called the
ILWU, alleging that a question affecting commerce had arisen con-
cerning the representation of employees of Montgomery Ward & Co.,
Incorporated, Baltimore, Maryland, herein called the Company, the
National Labor Relations Board provided for an appropriate hearing
upon due notice before Frank A. Mouritsen, Trial Examiner. Said
hearing was held at Baltimore, Maryland, on April 14, 15, and 16,
1943. The Company, the ILWU, United Retail, Wholesale and
Department Store Employees of America, affiliated with the Congress
of Industrial Organizations, herein called the United, and the Ameri-,
can Federation of Labor, herein called the AFL, appeared and par-
ticipated. All parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues. The Trial Examiner's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
The Company, V the ILWU, and the United have filed briefs which
the Board has considered. The United filed a motion to amend the
record to change the date of a conference of the two C. I. O. - unions,
50 N. L R. B., No. 32.
163
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated by a witness for the United to-have been January 19, to Feb-
ruary 12, 1943. The motion is granted. The United also filed
motions for oral argument and to dismiss the petition. The-motion
for oral argument is hereby denied: The motion to dismiss the peti-
tion is also denied, for the reasons set forth hereafter. The ILWU
,moved for leave to- amend its petition to alter the description of the
unit. The motion is hereby granted.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT '
I. THE BUSINESS OF THE COMPANY
Montgomery Ward Co., Incorporated, an Illinois corporation
with its principal office in Chicago, Illinois,' is engaged in the dis-
tribution and sale of general merchandise throughout the United
States through mail-order houses and retail stores. TheteCompany
operates about 9 mail-order houses, 650 retail stores, more than 200
catalog-order offices, about 4 factories and a ,large number of ware-
houses. In Baltimore, Maryland, the Company operates a mail-
order house, 3 attached mail-order warehouses, 1 retail store, and a
retail pool which is a centralized supply warehouse for retail stores
in the surrounding region. Only the Company's Baltimore, opera-
tions are involved in this proceeding.
For the fiscal year ending January 31, 1943, the mail-order house
in Baltimore purchased goods and merchandise valued at about
$27,000,000, of which $26,000,000 represented purchases from 'vendors
outside the State of Maryland. During the same period, the Balti-
more retail store purchased goods' end merchandise valued in excess
-of $6,000,000, 'all but $25,000 of which was purchased from vendors
outside the State of Maryland. All of these goods and merchandise
were shipped to the retail pool from whence they were turned over
to the retail store.
During the same fiscal period, the mail-order house sold and
shipped to customers goods and merchandise valued in excess of $34,-
000,000, all but $4,000,000 of which represented goods and merchan-
dise sold and delivered to customers outside the State of Maryland.
Nearly all of the sales of the retail store were to Maryland 'customers.
The Company admits that as to its mail -order operations, it is
engaged in commerce within the meaning of the National Labor
Relations Act. We find that the Company is engaged in commerce
within the meaning of the Act, not only as to its mail -order opera-
tions , but as to its retail pool and retail store as well.
V
l' ' MONTGOMERY WARD & CO., INCORPORATED 165
II. THE ORGANIZATIONS INVOLVED
Mail Order, 'Warehouse and Distribution Workers Union, char-
tered by the International Longshoremen's and Warehousemen's
Union, affiliated with the Congress of Industrial Organizations, is
a labor organization admitting to membership employees of the
Company.
United Retail, Wholesale and Department Store Employees of
America,-affiliated with the Congress of Industrial Organizations, is
a labor organization admitting to membership employees of the
Company.
The American Federation of Labor, is a labor organization, ad-
mitting to membership employees of the Companay.
M. THE QUESTION CONCERNING REPRESENTATION
On February 18, 1943, the ILWU requested recognition by the
Company as the exclusive bargaining representative of the employees
of the mail-order house. The Company refused to extend such
recognition until the ILWU has been certified by the Board in an
appropriate unit.
A statement of a Field Examiner for the Board and a supplemental
statement of the Trial Examiner, introduced into evidence, indicate
that the ILWU represents, a substantial number of employees in the
unit hereinafter found appropriate.,
The United contends that the petition should be dismissed on the
ground that°a jurisdictional dispute exists between the United and
the ILWU. It is to be noted, however, that there is a third labor
organization involved in this proceeding, not affiliated with the parent
body of the ILWU and the United. We find no merit in the United's
,contention.z
1 The Field Examiner reported that the ILWU submitted 953 authorization cards, 354
of which bear the apparently genuine signatures of persons whose names appear on the
Company's pay roll of February 25, 1943, and who are within the appropriate unit. 'There
are approximately 1,190 employees in the appropriate unit. Toward the conclusion of the
hearing the ILWU submitted to the Trial Examiner 41 additional authorization cards, 10
of which bear the apparently genuine signatures of persons whose names appear on the
Company,'s pay roll of February 25, 1943, and who are within the appropriate unit The
parties stipulated that the Trial Examiner might compare these additional cards with
the pay roll and make a statement as to the results of such comparison after the close of
the hearing , and that the Board might order that the said statement be incorporated into
the record . It is so ordered.
` The United submitted 11 cards bearing the names of persons on the Company pay roll in
the unit sought by the United, 6 of whom are in the unit sought by the ILWU. There
are between 3,400 and 3 , 500 employees in the unit sought by the United.'
The AFL submitted 29 cards, 6 of which bore the ' names of persons on the Company
pay roll in the unit which the AFL claimed to be appropriate, 3 of which were in the unit
sought by the ILWU. There are approximately 3,893 employees in the unit which the
AFL claimed to be appropilate.
2 See Matter of Long-Bell Lumber Company and International Association of Machinists
Local No. 1350, affiliated with the American Federation of Labor, 16 N. L R B 892;
Matter of Campbell, Wyant & Cannon Foundry Co and Local 539, International Union,
United Automobile Workers of Almerica, C. I. 0., 32 N L. R . B. 416.
536105-44-12
166 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
We find, that a question affecting commerce has arisen 'concerning
the.representation of employees of the Company, within the meaning
of^Section 9 (c)' and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The ILWU, in its amended petition, contends that all employees
who handle merchandise or; perform physical labor in the mail-order
house, excluding executives, confidential employees, supervisors, cler-
ical employees, buyers and rebuyers, skilled maintenance employees,
and employees in the jewelry repair department, constitute a unit
appropriate for the purposes of collective bargaining.
The Company- contends that the appropriate unit consists of all
employees of the mail-order house and retail pool, excluding only
the house manager, merchandise manager, the, comptroller, and the
employees 'in the medical department. The United contends that the
unit sought by the Company is appropriate, the only difference being
that the United would exclude the department heads and the em-
ployees in various technical and managerial departments. The AFL
seeks a unit comparable to that sought by the United, including in the
unit, however, the employees in the retail store.
The mail-order house is under the supervision of a house manager.
Directly responsible to him are the personnel department, medical
department, inspection department, and industrial engineering de-
partment. The business of the mail-order house is conducted through
three major groups, each composed of a large number of depart-
ments or divisions. These groups are the merchandise group, oper-
ating group, and the controller's or bookkeeping group. Each group
is supervised by a group manager who is responsible to the house
manager. The merchandise group is the purchasing branch of the
Company's operations. Its function is to purchase all the merchan-
dise which the Company sells to its customers. '' Although most of
the employees in this group do not handle merchandise, some of
them do, and hence come within the ILWU's definition of the ap-
propriate unit. The operating group is composed of the many divi-
sions which handle the selling part of the business. Merchandise
is divided into various groupings or categories and each category
or a group of categories is handled by one of the many divisions in
the operating group. Thus, men's shirts are handled by one divi-
sion, radios by another. Most of the `employees, who handle mer-
chandise are in the operating group, and clerical employees in these
departments are in the minority. The controller's group is com-
posed of the various clerical) and bookkeeping divisions such as ac-
counting, credit, billing, time-payment divisions, and others of' like
k
MONTGOMERY WARD & CO., INCORPORATED 167
nature. Most' of the employees in this group do only clerical work,
but a few handle merchandise. Each of the many divisions and
departments is under the supervision of a department head or super-
intendent. Some of the superintendents supervise several divisions.
Assisting the superintendents and department heads in the man-
agement of the divisions are various' supervisors. Although em-
ployees are originally employed through the personnel department,
their suitability for the work in the department to which they are
assigned is determined by the department head or superintendent,
who may refuse to accept an individual in his division. The depart-
ment heads and superintendents have authority to discharge and dis-
cipline while the supervisors have authority to recommend such action.
We shall exclude them from the unit.
The principal dispute between the ILWU and the other parties
hereto is as to whether clerical employees are appropriately; excluded
from the unit. The ILWU has confined its organizational activity
to.,employees who handle merchandise or do manual labor, and there
is no showing that any labor organization has effectively organized
the clerical employees. We are of the opinion that the clerical em-
ployees are properly excluded and that the unit, consisting essentially
of manual workers, sought by the ILWU is appropriate.3 However,
in the light of the detailed testimony with respect to the duties and
-functions of the numerous classifications of employees in each divi-
sion of the Company's operations, we regard the,description of the
unit suggested by the ILWU as too general. In order to avoid con-
fusion and uncertainty in the identification of employees in the
appropriate unit, we shall redefine the unit in terms of the depart-
ments or divisions and, where necessary, job classifications, listed in
the Appendices hereto.
The retail pool and retail store are housed in the same building'
with the mail-order house. The retail store, however, is operated
entirely separately from the mail-order house. Its management is
separate; there is no interchange of employees; and there is no inter-
change of merchandise. The ILWU has made no attempt to or-
ganize the employees of the retail store. We shall exclude them
from the appropriate unit. The retail pool, however, although nomi-
nally under separate management, is serviced by many of the depart-
ments and divisions of the mail-order house; the employees of the',
retail pool do the same kind of work as the mail-order employees;
and their wage scales and working conditions are the same as those
® See also the'following cases in which we found appropriate units similar to that sought
by the ILWU. Matter of Montgomery Ward & Co., Incorporated and Local 215, Mast
Order, Warehouse and Distribution Workers, I. L W. U., C. 1 0., 44 N. , L R B 694
Matter of Montgomery Ward & Company and Warehousemen's Union, Local No. 26) afli-
ated with I. B. of T. C. S. & S of A., A. F. of L., 24 N. L. R B 967.
168 DECISIONS OF NATIO'N'AL LABOR, RELATIONS BOARD
,prevailing in the mail-order house. Because of their close relation
to the employees of the mail-order, house and the close functional
integration of the two operations we shall include, them in the unit,
.excluding supervisory and clerical employees.
Group leaders, whom all,the parties wish to- include in. the unit,
spend 80 percent of their time doing the same kind of work as the
employees with whom they work. We find that they do not have
such substantial supervisory -authority as to require their exclusion
from the unit. - Their inclusion in or exclusion from the unit will
depend upon the inclusion or exclusion of the employees with whom
they work. I ,
. The ILWU seeks to exclude the employees of the cafeteria, while
the Company, United, and AFL would include them. There is no
evidence that any of the unions has attempted to organize them, and
they have evinced no present interest in self-organization. Since they
are differentiated functionally from the other employees in the unit,
and have expressed no desire for self-organization, we shall exclude
them from the unit.,
We find that the employees in all the departments and divisions
listed in Appendix -A, excluding department heads, supervisors,
typists, and stenographers, record clerks (grades 1, 2 and 3), time-
keepers, instructors, catalog sales clerks, technical sales clerks, clerks,
correspondents, merchandisers, junior merchandisers, ediphone oper-
ators, information clerks, pricers, sign-out clerks, file clerks, production
clerks,- adjusters, accuracy control clerks, listers, production-control
.clerks, calculator operators, and watchmen; and the specifically named
categories of employees set -forth, in Appendix C; but excluding all
employees in the-departments listed in Appendix B and all employees
in the departments set forth in Appendix C except-the categories of
employees specifically listed therein, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation when
has arisen be resolved by, an election by secret ballot among the,
employees in the appropriate unit who were employed during the
pay-roll period immediately preceding the date of the Direction of
Election herein, subject to the limitations and additions set forth in
the Direction .4
Although the membership showings of the United and the AFL
' The Company requested that the pay -roll period immediately preceding the election
be used as the basis of eligibility to vote No reasons are advanced by the Company to
justify this departure from our customary practice. The request is denied:
'MONTGOMERY WARD & CO., INCORPORATED 169
are shall, their interest in the Company's employees dates back over
a, considerable period of time.5 We shall permit them to appear on
the ballot.
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
Relations Act, and pursuant to Article III, Section 9, of National
Labor Relations Board Rules and Regulations-Series 2, as amended,
it is hereby.
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Montgomery Ward
& Co., Incorporated, Baltimore, Maryland, an election by secret ballot
shall be conducted as early as possible, but not later than thirty (30)
days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Fifth Region, acting in this
matter as agent for,the National Labor Relations Board, and subject
to Article III, Section 10, of said Rules -and Regulations, among the
employees in the unit found appropriate in Section IV, above, who
were employed during the pay-roll period immediately preceding
the date of this Direction, including employees who did not work
during said pay-roll period because they were ill or on vacation or
temporarily laid off, and including employees in the armed forces of
the United States who present themselves in person at the polls, but
excluding those employees who have since quit or been discharged for
cause, to determine whether they,desire to be' represented by Mail
Order, Warehouse and Distribution Workers Union, chartered by the
International Longshoremen's and Warehousemen's Union, affiliated
with the Congress of Industrial Organizations, or by United Retail,
Wholesale and Department Store Employees of America, affiliated
with the Congress of Industrial Organizations, or by the American
Federation of Labor, for the purposes of collective bargaining, or by
none of said unions.
APPENDIX A
DEPARTMENTS AND DIVISIONS INCLUDED
1. Shipping and Receiving (Including trucking & freight elevator
operators).
2. Packing.
f
Cf. Matter of Thomasville Chair Company and Upholsterers International Union, Local
308, A. F. of L.,,37 N. U. R. B. 1017; Matter of Weyerhaeuser Timber Colmpany and Inter-
national Association of Machinists, Lodge No. 1473, affiliated with the American Federation
of Labor, 30 N. L. R. B. 872. Both the United and the AFL attempted to organize the
Company as early as 1940.
170 DBOISIONS.' OF NATIONAL' LABOR RELATIONS BOARD
-.3. Central Repair & Div. 88 (Repair parts). '
4. Merchandise Divisions 15, 25, 40, 42.
5. Merchandise Divisions 23, 24, 26, 30.
6. Merchandise Divisions 29, 31, 32, 36.
7. Merchandise Divisions 75,76, 85,-86.
8. Merchandise Divisions 60, 61, 62, 64.
9. Outside Warehouse.
10. Attached Pit and Warehouse.
11. Merchandise Divisions 46, 68, 81, 83, 84, 87.
12. Merchandise Divisions 66, 72. '
13.' Merchandise Divisions 45, 51, 53, 57 .6
,14. Merchandise Divisions 16, 17, 18,, 71.
15. Package opening.
16. Retail Pool.
17. Pitsburgh Outside Warehouse.
18. Porters and matrons.
19. Supply.
APPENDIX B
DEPARTMENTS AND DIVISIONS EXCLUDED
1. Manager
2. Personnel
3. Training
4. Medical
5. Inspection
6. Industrial Engineering
'7. Merchandise Manager
8. Stock Record
9. Operating Manager
El tPassenger eva or10.
11. Telephone & Telegraph-
12. Cafe
13. Adjustment & Sales
Engineer
14. Order Clerical
15. Controller
16. Chief Accountant
17. Accounts Payable & Merchan-
dise Transfer
18. Accounting & Statistical
19. Catalog Order Control
20. Order Control
21. Protection
22. Chief Cashier
,23.' Mail Opening
24. General Cashiers
25. Budgetary Control
26. Time Payment
27. Credit Order
28. Engineering 7
29. Jewelry Repair
30. 'House Communications
31. Multigraph
Excluding the jewelry repair department (See Appendix B).
4 The Engineering Department, or boiler room employees, have already been established
by the Board as a separate unit. See Matter of Montgomery Ward & Company and Inter-
national Union of Operating Engineems,'Locals ' 272 & 272A, 29 N. L. It. B. 1120.
I
11
MONTGOMERY WARD & CO., INCORPORATED 171
APPENDIX C
SPECIAL CASES
Departments excluded,' but specifically named categories of em-
ployees included.
1. Inspection
-auditors
-packers
2. 5 groups'of Merchandising Division, known as the Stock Con-
trol Dept..
-stock helpers'
-stockmen
-return clerks
-bin filler'
3. Traffic
-freight handlers
-receiving & shipping checkers
4. Catalog Order
-porters '
-packers B
-tube clerks
-checkers Gr. 1
5. Billing -
-billing-scalers
-porters
6. Normal Maintenance
-stockmen
-laborers (who haul coal)
-messengers
-tube clerks
7. Index and Publicity
-order fillers
-stock helpers '