Montgomery Ward & Co.

National Labor Relations Board - Board Decisions

Jan 16, 1942

38 N.L.R.B. 340 (N.L.R.B. 1942)

1 n the Matter ' of MONTGOMERY WARD & COMPANY and RETAIL
CLERKS INTERNATIONAL PROTECTIVE ASSOCIATION, LOCAL 283, AFFILI-
ATED WITH THE AMERICAN FEDERATION OF LABOR
Case No. B-3398.-Decided January 16 , 1942°
Jurisdiction : retail and mail-order merchandising industry.
Investigation and Certification of Representatives : existence of question. re
fusal to accord union recognition until certified, by the Board ; agreement that
a question concerning representation''has arisen ; election necessary.
Unit Appropriate for Collective Bargaining : all employees-of the Company it
its Wichita, Kansas, retail store, exclusive of supervisors, the manager's
private secretary, the credit manager, the personnel training supervisor, and
temporary employees working less than thirty,, hours, a week; regular
employees working less than thirty hours a week included, notwithstanding
desire of the Union for their exclusion
Mr. -E. K. Koppleman, of Wichita, Kans.. and Mr. W. F., Crow, of
Wichita, Kans., for the Union.
Mr. Brooks Wynnze., of Chicago, Ill., for the Company.
Mr. J. Benson. Saks, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT' OF' THE CASE
On October 30, 1941, Retail Clerks International Protective Asso-
ciation, Local 283, affiliated with the American Federation of Labor,
herein called ' the' Union, filed with the Regional Director for the
Seventeenth' Region (Kansas City, Missouri) a petition, • and on
November 8, 1941, an amended • petition, alleging ^ that a -question
affecting commerce had arisen 'concerning the representation of em-
ployees of Montgomery `hard and Company, Wichita, Kansas, herein
called the Company, and, requesting an investigation and certification
of representatives pursuant to Section 9 (c) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. On December 8,
1941, the National Labor Relations Board, herein' called the 'Board,
acting pursuant to Section 9 (c) of'the Act and Article III, Section
38 N L: R.'B', -No: 70. -
340
, •
MONTGOMERY WARD & COMPANY 341
of National Labor Relations Board Rules and Regulations-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. .
On December 12, 1941, the Regional Director issued a notice of hear-
ing, copies of which were duly. served upon the Company and the
Union. Pursuant to notice, a hearing was held on December 18, 1941,
at Wichita, Kansas, before Paul Nachtman, the Trial Examiner duly
designated by the Chief Trial Examiner. The Company was repre-
sented by counsel and the Union by its representatives; both partici-
pated in` the hearing. Full opportunity to be heard,, to examine and
cross-examine witnesses, ' and to, introduce; evidence bearing on the
issues' was afforded all parties. During the course of the hearing,
the Trial Examiner made several rulings on motions and''on objections
to the admission of evidence. The Board has reviewed the rulings
of the Trial Examiner and finds that 'no prejudicial errors were
committed. 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 '
The Company is engaged in retail and mail-order merchandising.
The present controversy involves its retail store at Wichita, Kansas.
Approximately 90 percent of the merchandise sold and distributed by
the store originates outside the State of Kansas. The net' sales of
the store in the year ending January 31, 1941, approximated $1,300,-
000. Of this amount about one-half of one percent involved deliveries
to customers outside the State of Kansas.
II. THE ORGANIZATION INVOLVED
Retail Clerks International Protective Association, Local 283,
affiliated with the American Federation of Labor, is 'a labor organi-
zation admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Union and the Company agi'ee that a question concerning
representation has arisen. The Company''through' its attorney in-
formed the Union on or about October 22, 1941, that it would bargain
collectively with the Union if it were certified by the Board. A
report of 'the Acting Regional'Director'of the Board shows that the
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union represents a substantial number of employees in the
appropriate unit.'
We find that a question has arisen' concerning the representatioii
of employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several- States and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
Except as noted below, the parties agree that all employees at the
store; excluding supervisors, constitute an appropriate unit. The
Union contends that the manager's private secretary, the credit man-
ager, the personnel training supervisor, and employees working less
than 30 hours a week, should be excluded from the unit. The Com-
pany asserts that their inclusion will produce "harmony."
The Manager's Private'Secretart:
She is a confidential employee; and is closely identified with the
management. Accordingly, we find that the manager's private
secretary should be excluded from the appropriate unit.
The Credit Manager:
He is a supervisory employee with authority to discharge, subject
to the approval of the store manager. We find that the credit
manager is not within the appropriate unit.
The Personnel Training Supervisor:
The nature of her work is supervisory. She has the power to hire
and fire in collaboration with the store manager. We shall exclude
her from the appropriate unit.
Employees working less than 30 hours a week:
These employees, who are considered part-time employees, are not
permitted to join the Union.. It is urged on behalf of the Union
' The Acting Regional Director reports that the Union submitted to him 86 application
cards, 77 of which bear dates from August through October 1941, an additional 7 cards
which bear no year dates , one additional card which is completely undated , and one which
is a duplicate ; that all the signatures appear to be genuine ; and that 75 of the signatures
are names of persons appearing on the Company 's pay roll of November 13, 1941. The
store employed a total of about 212 persons as of this date.
MONTGOMERY WARD & COMPANY 343
that the problems confronting part-time employees are different from
those applicable to full-time employees. The Company asserts that
the working conditions of part-time employees are the same as those
of the full-time employees and that their wages are computed on a
basis similar to that used for the full-time employees. Upon the
entire record, we find that part-time employees regularly employed
by the Company should be included in, and that part-time employees
who are employed only temporarily should be excluded from, the
appropriate unit. -
We find that all employees of the Company at its Wichita, Kansas,
store exclusive of supervisors, the manager's private secretary, the
credit manager, the personnel training supervisor, and temporary
employees working less than 30 hours a week, constitute a unit ap-
propriate for 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 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 an election by secret ballot.
We shall direct that -those eligible to vote shall be the employees in
the appropriate unit whose names appear upon the Company's pay
roll immediately preceding the date of our Direction of Election,
subject to such limitations and additions as are set forth in the
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 of Montgomery Ward and Company, Wichita,
Kansas, within the meaning of Section 9 (c) and Section 2 (6) and
(7) of the National Labor Relations Act.
2. All employees of the Company at its Wichita, Kansas, store
exclusive of supervisors, the manager's private secretary, the credit
manager, the personnel-training supervisor, and temporary employees
working less than 30 hours a week, 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
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Labor' Relations Board Rules and Regulations-Series 2,
as amended, it is hereby
DIRECTED that, as'part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Montgomery Ward and Company, Wichita, Kansas, 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 of Election
under the direction and supervision of the Regional Director for the
Seventeenth 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 among all employees of the Company at its
Wichita, Kansas, store, whose names appear upon the Company's
pay roll immediately preceding the date of this Direction of Elec-
tion, including any employees who did not work during said pay-roll
period because they were ill or on vacation, or in the active military
service or training of the United States and employees who were then
or have since been temporarily laid off, but excluding supervisors,
the manager's private secretary, the credit manager, _the personnel-
training supervisor, temporary employees working less than 30 hours
a week, and employees who have since quit or been discharged for
cause, to determine whether or not they desire to be represented by
Retail Clerks International Protective Association, Local 283, affili-
ated with- the American Federation of Labor, for the purposes of
collective bargaining.