Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

May 20, 1942

41 N.L.R.B. 122 (N.L.R.B. 1942)

In the Matter of MONTGOMERY WARD & CO., INCORPORATED and UNITED
RETAIL, WHOLESALE AND DEPARTMENT STORE EMPLOYEES OF
AMERICA, LOCAL No. 269
Case No. R-3691.Decided May 20,191
Jurisdiction: retail merchandising industry.
Investigation and Certification of Representatives: existence of question: re-
fusal to accord union recognition until it is established that the union
represents a majority of the employees; election necessary.
Unit Appropriate for Collective Bargaining : all employees of the Company's
Denver, Colorado, retail store and retail warehouse, excluding the manager,
group merchandisers, department heads, supervisors, temporary part-time
employees, leased-department employees and detectives.
Mr. Paul S. Kuelthau, for the Board.
Mr. Brooks Wynne, of Chicago, Ill., for the Company.
Mr. Fred K. He ff erly, of Denver, Colo., for the Union.
Mr. Gerard J. Manacle, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition and amended petitions duly filed by United Retail,
Wholesale and Department Store Employees of America, Local No.
269, herein called the Union, alleging that a question affecting com-
merce had arisen concerning the representation of employees of
Montgomery Ward & Co., Incorporated, Denver, Colorado, herein
called the Company, the National Labor Relations Board provided
for an appropriate hearing upon due notice before Thomas S. Wilson,
Trial Examiner. Said hearing was held at Denver, Colorado, on
April 2, 1942. The Company and the Union appeared, participated.
and 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 errors and are hereby affirmed.'
1 Subsequent to the hearing, the Company, the Union , and the Board 's attorney
entered into a stipulation for the correction of certain errors in the transcript of
testimony . The Board hereby orders that the stipulation be made a part of the record
and that the transcript be corrected in accordance with the stipulation.
41 N. L. It. B., No. 28.
122
MONTGOMERY WARD' & CO., INC. 123
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
with its principal executive office in Chicago, Illinois, is engaged in
the distribution of merchandise throughout the United States and
many foreign countries through the media of mail-order houses and
retail stores,': . In connection -with - such- distribution, the -Company
operates 9 mail-order houses and more than 600 rental stores. - This
proceeding involves the retail store and retail warehouse of the Com-
pany in Denver, Colorado. During the year 1941,'the net sales of
the Denver retail store were in excess of $4,500,000, of which $35,955
represented: merchandise sold and shipped to points outside the State
of Colorado. During the same period, the Denver retail store re-
ceived 90 ' percent of its merchandise from outside the State of
Colorado. --
'11. ,THE ORGANIZATION INVOLVED
United Retail Wholesale and Department -Store Employees of
America, Local No. 269, is a labor organization affiliated with the
C. I. 0., admitting to membership employees of the Coriipany.
III. THE QUESTION CONCERNING REPRESENTATION
From October ' 1939 to June 1941 the Company and' tie ' Union
settled "a 'number ` of- employees ' grievances . Since the latter ' 'date,
however, the ' Company has refused to meet with the Union until it
is established that 'the Union , represents a majority of the employees
in an appropriate bargaining unit.
'A statement of the Regional Director , introduced into ' evidence at
the hearing, indicates that the Union represents a substantial number
of employees in the unit hereinafter found to be appropriate.'
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 National Labor
Relations Act.
2 The report^of the Regional Director states that the Union submitted 131 application-
for-membership cards ; that all cards appear to bear genuine signatures; _and that 122
of the cards bear the names of persons appearing on the Company's February 12, 1942,
pay ioll. Approximately 240 persons are employed in the unit claimed by the Union to
be appropriate.
I
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it
IV: THE APPROPRIATE' UNIT
The Company and the Union agree that employees in the Denver
retail store and retail warehouse constitute an appropriate unit, and
that the manager,-operating manager, and merchandising manager,
should be excluded therefrom. The Union would exclude and the
Company include, however, the following employees and groups of
employees :
- 1. Group merchandisers.3 There are two group merchandisers,
each of whom is responsible for, and has direct supervision of, a cer-
tain number of sales departments in all matters concerning merchan-
dising, displays, and selling. We find that group merchandisers are
supervisory employees and, as such, should be excluded from the unit.
2. Department heads,' supervise the work of employees in their
respective departments. The same degree of authority is exercised
by all department heads and all have power to recommend the hiring
or discharging of employees in their departments. We find that de-
partment heads are supervisory employees and, as such, should be
excluded from the unit.
3. Personnel department employees. The personnel department in-
terviews applicants for work, helps to determine the efficiency ratings
of employees, calls part-time employees to work, and handles all
other matters relating to personnel. The Union does not admit these
employees to membership. Under the circumstances, we find that
personnel department employees should be excluded from the unit.'
4. Temporary part-time employees. The Company carries on the
pay roll as temporary part-time employees those employees who work
"one or two days at various times" prior to the pay-roll date. The
Union contends that only those part-time employees who work "a
good deal over 50°Jo of the year" are regular-part-time employees,
and that all other part-time employees are temporary part-time
employees. We are of the opinion and find that employees who work
regularly in each pay-roll period, if only of ce, are regular part-time
employees and should be included in the unit, but that employees not
so regularly -employed are temporary part-time employees and, as
such, should be excluded fi om the unit.
5. Store detectives are used primarily to guard against shop-lifting
on the sales floor, and also perform other police or detective work.
We find that they should be excluded from the unit.
6. Marion Williams, Thelma Cathey, Marie Selby, Leona Cleer, and
Eva Freeman supervise and are responsible for the work of from 4
a Also referred to in the record as floor supervisors
Also referred to in the record as department managers
a Cf. Matter of Creamery Package' Manufacturing Company and Steel Workers Organizing
Committee, C. I. 0, 34 N. L. R B 108
MONTGOMERY WARD & CO., INC. 125
to 20 employees in various divisions of the departments., They have
the power to recommend the hiring . or discharging of employees.
We find that these 5 employees are supervisory employees and, as
such, should be excluded from the unit.
7. Victor Shellinger is designated in the record as display manager,
but it does not appear that he has any supervisory duties. We find
that he should be included in the unit.
There are also a manufacturer's representative, Herrod Bates, and
some employees -of departments which are leased by the Company
to other persons, whose exclusion has, not been specifically requested.
Bates operates a counter exhibiting Dr. Scholl's products, but it does
not appear 'that he exercises any supervisory functions. The Com=
pany pays only half his salary, the Dr. Scholl Company paying the
other half. We shall include him in the unit. As to the leased-
department employees, they are paid by and are under the supervision
of the persons leasing the departments. We shall exclude them from
the unit.
We find that all employees of the Company's Denver retail store
and retail warehouse, excluding the manager, operating manager,
merchandising manager, group merchandisers, department heads,
supervisors, temporary part-time employees, personnel-department
employees, leased-department employees, and detectives, 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 which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tion "herein, subject to the limitations and additions set forth in the
Direction.
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 Re-
lations Act, and pursuant to Article III, Section 8, 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 S, Co., Incorporated, Denver, Colorado, an election by secret
ballot shall be conducted as early as possible, but not later than thirty
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(30) days from the date of this Direction, under the direction and
supervision of the Regional Director for the Twenty-second Region,
acting in this matter as agent for the National Labor Relations
Board, and subject to Article III, Section 9, of said Rules and Reg-
ulations, among the employees in the unit found appropriate in Sec-
tion IV, above, who were employed during the pay-roll period im-
mediately preceding the date of this Direction, including any such
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, or temporarily laid off, but excluding
any who have since quit or been discharged for cause, to determine
whether or not they desire to be represented for the purposes of
collective bargaining by United Retail, Wholesale and Department
Store Employees of America, Local No. 269.