Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1942

44 N.L.R.B. 694 (N.L.R.B. 1942)

In the Matter Of MONTGOMERY WARD & CO., INCORPORATED and LOCAL
215, MAIL ORDER, AVAREHOUSE AND DISTRInuTION WORKERS, I. L.
W. U., C. I. O.
In the Matter of MON TGOMERY WARD & Co., INCORPORATED and INTER-
NATIONAL UNION OF OPERATING ENGINEERS, LOCAL NO. 36, A. F. L.
Cases Nos. R-4203 and R- 4204, respectively.-Decided September 30,
19..
Jurisdiction : general merchandising mail order business and retail store.
Investigation and Certification of Representatives : existence of questions • in
response to request by union for recognition. Company questioned appropriate-
ness of unit and majority designation claimed by union; when second labor
organization urged Company to reduce oral agreement to writing, Company
suggested that such request be submitted in writing: elections necessary
Units Appropriate for Collective Bargaining : (1) all employees. engaged in
warehouse operations, actually handling merchandise or performing physical
labor in Company's retail store and mail older house, excluding executives,
confidential employees, supervisors, othee employees, clerical employees, buyers
and rebuyers, plant protection employes, retail clerks, billers, employees of cata-
log order department, and all employees in maintenance unit, and (2) all engi-
neers and firemen of powerhouse, maintenance electricians. maintenance car-
penters, maintenance painters, and general manitenance men of the building
maintenance and operating division of mail order home, including chief engi-
neer of powerhouse and leadman of maintenance carpenters.
Mr. Brooks Wynne, of Chicago, Ill., for the Company.
Helstein cfi Hall byMr. Douglas Hall and Mr. Ralph Helsteinn, and
Mr. Robert Matigan, of St. Paul, Minn., for Local 215.
Mr. William R. Cuddihy and Mr. A. J. Alberg, of St. Paul, Minn.,
for the Operating Engineers.
Mr. Frederic B. Parkes. 2nd, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon petitions duly filed by Local 215, Mail Order, Warehouse and
Distribution Workers, I. L. W. U., C. I. O., herein called Local 215, and
International Union of Operating Engineers, Local No. 36. A. F. L.,
44 N L. R B, No 126
694
MONTGOMERY' WARD & CO., INCORPORATED 695
herein called the Operating Engineers, alleging that questions affect-
ing commerce had arisen concerning the representation of employees
of MontgomeryWard & Co.; Incorporated, St. Paul, Minnesota, herein
called the Company, the National Labor Relations Board provided
for an appropriate hearing upon due notice before Harry Brownstein,
Trial Examiner. - Said hearing was held at Minneapolis, Minnesota,
on August 20, 21, 22, and 24, 1942. The Company, Local 215, and the
Operating Engineers 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 error and are
hereby affirmed.
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,
operates 9 mail order houses, 4 warehouses, 4 factories, 647 retail stores,-
and 209 catalog offices throughout the United States. This proceeding
is concerned solely with the employees of the Company's mail order
house and retail store in St. Paul, Minnesota. During 1941, the sales
of the mail order house amounted to approximately $35,755,966, of
which amount approximately 60 percent was delivered to customers
outside the State of Minnesota. Total purchases of the mail order
house during 1941 amounted to more than $25,000,000, of which amount
approximately 90 percent was purchased and shipped to the mail order
house from points outside the State of Minnesota. During the fiscal
year ending January 31, 1942, the total sales of the retail store were in
excess of $8,750,000, of which amount approximately 1 percent was "sold
and delivered to points outside the State of Minnesota. During the
same period, the purchases of the retail store amounted to more than
55,000,000, of which amount approximately 80 percent was shipped to
the retail store from points outside the State. As of August 13, 1942,
the Company employed 2,475 employees in its mail order house and
approximately 700 employees in its retail store.
II. THE ORGANIZATIONS INVOLVED
Local 215, Mail Order, Warehouse and Distribution Workers is a
labor organization admitting to membership employees of the Com-
pany. It is affiliated with International Longshoremen's and Ware-
housemen 's Union, which is an affiliate of the Congress of Industrial
Organizations.
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union of Operating Engineers, Local No. 36, is a labor
organization affiliated with the American Federation of Labor, admit-
ting to membership employees of the Company.
III. THE QUESTIONS CONCERNING REPRESENTATION
By letters,dated May 28 and, June 11, 1942, Local 215 informed the
Company that it represented a majority of the Company's employees
within the unit which it herein urges to be appropriate. The Company
replied on June 16, 1942, that it questioned the appropriateness of the
unit and the majority designation claimed by Local 215.
In January 1942, the Company met with the Operating Engineers
in a bargaining conference and a few days later agreed to increase the
,wages of firemen. In April 1942, the Operating Engineers requested
the Company to sign a written contract embodying the oral agreement,
since Local 215 was at that time busily engaged in organizing the plant.
The Company suggested that the Operating Engineers submit their
request for a contract in writing. The Operating Engineers did not
.comply; it filed its petition on July 9, 1942.
Statements of the Regional Director and the Trial Examiner in-
troduced into evidence indicate that Local 215 and the operating
Engineers, respectively, represent a substantial number of employees
in the units hereinafter found to be appropriate.'
We find that questions affecting commerce have 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.
IV. THE APPROPRIATE UNITS
Local•215 seeks a unit composed of the employees in the shipping
and receiving department, the warehouse department,'the receiving
'The following tabulation sets forth the statements of the Regional Director and the
Trial Examiner with respect to authorization evidence submitted to them by Local 215 and
the Operating Engineers :
nion vidence
Num-
ber of
sig- ated
Apparently
genuine
Num-
her
signa-
tures
Num-
ber in
na-
tures
signatures one
pay
roll
unit
171 undated. 1, 003 592 1 1, 528
301 Aug. thru
Local 215--------- Application cards- 1, 016
Dec. '41
408 Jan thru Apr or
'42
136 May thru
Aug '42 Mail order house 528 1,433
employees.
Retail store em- 64 95
Operating Engi- Affidavit of mem- 37 July 13, 1942-------
ployees.
-------------------- 34 112
neers. bership.
I
MOITGOMERY WARD, & -CO., INCORPORATED ' 697
and marking department, and the delivery department, and porters;
matrons, and freight elevator operators of the Company's retail stores;
and the employees in the merchandise departments (Departments Nos.
1, 2, 3, 4, 5) 6, 7, 8, 9, 10 and jewelry repair, 11 and central repair, 12,
and 13 and outside warehouses), the supply department, the packing
department, the receiving, shipping, and trucking department, and the
package opening department (merchandise sorters, package openers,
truckers, sorters, and packers of fashion merchandise only), and the
porters, matrons, and freight elevator operators of the Company's
mail order house, including tube clerks, tube and sort clerks; pricers,
production-control clerks, schedule-control clerks, trouble clerks, fac-
tory order checkers, stencil and pit tag girls, receivers, examiners,
preparation clerks, merchandise-reconditioning clerks, warehouse-
men, stockmen and helpers, checkers, order fillers, wrappers, packers,
supply clerks, slug scalers of the billing department, scalers on the
packing and merchandise floors, sample-room employees of Depart-
ment 8, print-shop employees of Department 10, and working super-
visors, but excluding executives, confidential employees, supervisors,
office employees, clerical employees, buyers and rebuyers, plant protec-
tion employees, retail clerks, billers, employees of the catalog order
department, and all maintenance employees claimed by the Operating
Engineers.
The Operating Engineers contends that the powerhouse employees,
maintenance carpenters, maintenance electricians, maintenance paint-
ers, and general maintenance men of the building maintenance ant op-
erating division of the Company's mail order house, including the chief
engineer, engineers, and firemen, constitute an appropriate unit. The
Company denies the appropriateness of the units urged by Local 215
and the Operating Engineers and insists that the employees of its
retail store and of its mail order,house constitute two separate appro-
priate units, excluding certain executives, supervisors, and medical-
department employees from the mail order house unit and executives
from the retail store unit.
The mail order and retail-shipping operations are housed in a
nine-story building connected to the retail store by an overhead bridge
and an underground tunnel. Nearby are the Bohn and Paulle ware-
houses used exclusively for the storage of the mail 'order house's mer-
chandise, as is the Crex Warehouse, which is about 7 miles removed
from the plant, and the space leased by the Company in the Northern
Jobbing Company Warehouse. Merchandise for the retail store is
stored solely in the Central Warehouse, 2 miles distant from the store.
The management, organization, and operation of the retail store are,
for the.most part, distinctly separate from those of the mail order
house. It appears that there is no interchange of employees between
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the store and the mail order house and that the retail store employees,
whose work week is longer than that of the hourly paid mail order
house employees, are paid on a weekly basis. However, the mail order
receiving department unloads from trucks and railroad cars merchan-
dise consigned to the retail store and takes it to the retail store's re-
ceiving department which is located in the basement of the mail order
house building. The retail store's delivery department delivers in the
St. Paul and Minneapolis area' orders placed by customers In person
or by telephone with the mail order house. About 20 percent of the
merchandise carried by the store is also sold by the mail order house.
The close relationship of the two operations is further demonstrated
by the fact that 7 or 8 percent of the merchandise sold by the retail
store is furnished upon special order by the mail order house at cost
plus a fixed' carrying charge. Iii view of these circumstances, we find
that the employees of the retail store and of the mail order house may
be merged in a,single unit appropriate for collective bargaining.
The record discloses that Local 215 has confined its organizational
activities to those employees who are engaged in warehouse operations,
actually handling merchandise or performing physical labor. It does
not seek to represent retail clerks or employees employed exclusively
in clerical or office work. The mail order house employees in Local
215's unit may be divided into three groups, namely, those engaged in
the warehousing of new merchandise and of merchandise returned by
customers, those concerned with the filling, packing, and delivery of
orders, and those employed in miscellaneous classifications who handle
merchandise or perform physical labor. In the retail store, Local
215 has admitted to membership employees performing similar, though
somewhat less extensive, warehouse functions. In view of these cir-
cumstances, we find the unit requested by Local 215 to be appropriate.
Organization of the employees has been confined to a homogeneous
and readily identifiable group of employees who handle merchandise
or perform physical labor, and Local 215.is the only: labor organization
existing among the employees Involved .2
The Operating Engineers seeks a unit composed of the chief engi-
neer, engineers, and firemen of the power plant and the skilled main-
tenance employees engaged in repairing the Company's plant, and
equipment. Among the latter are the carpenter maintenance depart-
ment, the electrical maintenance department, the painting maintenance
department, and miscellaneous maintenance repairmen engaged in re-
pairing typewriters, automobile trucks, elevators, scales, and other
equipment. As indicated in Section III, supra, the Operating Engi-
neers has bargained with the Company for the power plant and main-
tenance employees and, in January 1942, negotiated an increase in
2 See Mattel of Montgomery Ward 4 Company and Wa^e ousemen ' s Union, Local 1'0 26,
afleated2vithI B of 7 ' C W d 11.ofA.A F ofL ..24N L R B 967
MONTGOMERY WARD & CO., INCORPORATED 699
the wages of firemen. In view of the past history of collective bar-
gaining, and the fact that these employees are skilled craftsmen, we
find that the unit urged by the Operating Engineers is appropriate.'
The Operating Engineers would include in its unit, and the Com-
pany would exclude, the chief engineer and the leadman of the car-
penter gang. These employees are listed on the Company's super-
visory pay roll. They are paid on a weekly salary basis, whereas their
subordinates are hourly paid. The chief engineer is directly respon-
sible for the operation of the power plant and has authority to recom-
mend hiring and discharging. The leadinan of the carpenters spends
most of his time in supervising the 15 carpenters employed by the
Company, although he frequently works with them. The Company
did not urge the exclusion of the master electrician or the leadman
off he painting creW since they are not listed on the supervisory pay
roll. However, it appears that their duties are similar to those of
the carpenter leadman and the chief engineer. We shall include the
chief engineer and the carpenter leadman in the Operating Engineer's
unit.
We find that the employees in the shipping and receiving depart-
ment, the warehouse department, the receiving and marking- depart-
ment, and the delivery department, and porters, matrons, and freight
elevator operators of the Company's retail store; and the employees in
the merchandise departments (Departments Nos. 1, 2, 3, 4, 5, 6) 7, 8, 9,'
10 and jewelry repair, 11 and central, repair, 12, and 13 and outside
warehouses), the supply department, the packing department, the
receiving, shipping, and trucking department, and the package open-
ing department (merchandise sorters, package openers, truckers,
sorters, and packers of fashion merchandise only), and the porters,
matrons, and freight elevator' operators of the Company's mail order
house, including tube clerks, tube and sort clerks, pricers, production-
control clerks, schedule-control clerks, trouble clerks, factory order
checkers, stencil and pit tag girls, receivers, examiners, preparation
clerks, merchandise=reconditioning 'clerks, warehousemen, stockmen
and helpers, checkers, order fillers, wrappers, packers, supply clerks,
slug scalers of the billing department, scalers on the packing and
merchandise floors, sample-room employees of Department 8, print-
shop employees of Department 10, and working supervisors, but ex-
cluding executives, confidential employees, supervisors, office em-
ployees, clerical employees, buyers and rebuyers, plant protection em-
ployees, retail clerks, billers, employees of the catalog order depart-
ment, and all employees in the Operating Engineers' unit, constitute
,a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
Cf Matter of Montgo,ue,g T-Vard cC Company and late) national Union of 0peiattng Engi-
neei c , Locals 2?2 and 2?2A, 29 v L R B 1120
700 DECISIONS OF-NATIONAL LABOR RELATIONS BOARD
We further find that the engineers and firemen of the powerhouse,
maintenance electricians, maintenance carpenters, maintenance paint-
ers, and general maintenance men of the building maintenance and
operating division of the Company's mail order house, including the
chief engineer of the powerhouse and the leadman of the maintenance
carpenters, 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 find that the questions concerning representation which have
arisen can best be resolved by elections by secret ballot. The Com-
pany maintains separate pay rolls for its three types of employees,
namely, regular, part-time, and temporary. Regular employees are
provided with 38 hours work each'week. Part-time employees work at
least 20 hours each week; but the temporary employees are pot assured
of any definite number of hours work. They are all paid the same
rates. The parties are apparently agreed, and we find, that all three
types of employees should be eligible to vote in the elections.
To determine eligibility to vote; the Company urges the use of a pay
roll current at the date of the election. Local 215 and the Operating
Engineers request the use of the pay roll in effect 60 days preceding the
date of the Direction of Election, on the ground that the number of
employees is affected directly by the seasonal fluctuation of the Com-
pany's business, which reaches its peak. shortly before Christmas. We
find no reason to depart from our customary practice and shall direct
that the persons eligible to vote in the elections shall be those in the
appropriate units who were employed during the pay-roll period im-
mediately preceding the date of the Direction of Elections herein,
subject to the limitations and additions hereinafter 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 Relations 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 determine representa-
tives for the purposes of collective bargaining with Montgomery Ward
& Co., Incorporated, St. Paul, Minnesota, elections 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 supervision
of the Regional Director for the Eighteenth 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 the
MONTGOMERY WARD & CO , INCORPORATED 701
employees of the Company in each of the groups described below who
were employed during the pay-roll period immediately preceding the
date of this Direction of Elections, including any such employees who
did not work during that 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 :
(1) The employees in the shipping and receiving department, the
warehouse department, the receiving and marking department,' and
the delivery department, and porters, matrons, and freight elevator
operators of the Company's retail store; and the employees in the
merchandise departments (Departments Nos. 1, 2, 3, 4,5, 6, 7, 8, 9, 10
and jewelry repair, 11 and central repair, 12, and 13 and outside ware-
houses), the supply department, the packing department, the receiving,
shipping, and trucking department, and the package opening depart-
ment (merchandise sorters, package openers,,truckers, sorters, and
packers of fashion merchandise only), and the porters, matrons, and
freight elevator operators of the Company's mail order house, includ-
ing tube clerks, tube and sort clerks, pricers, production-control clerks,
schedule-control clerks, trouble clerks, factory order checkers, stencil
and pit tag girls, receivers, examiners, preparation clerks, merchan-
dise-reconditioning clerks, warehousemen, stockmen and helpers, check-
ers, order fillers, wrappers, packers, supply clerks, slug scalers of the
billing department, scalers on the packing and merchandise floors,
sample-room employees of Department 8, print-shop, employees of
Department 10, and working supervisors, but excluding executives,
confidential employees, supervisors, office employees, clerical employees,
buyers and rebuyers, plant protection employees, retail clerks, billers,
employees of the catalog order department, and all employees in the
Operating Engineers' unit, to determine whether or. not they desire to
be represented by Local 215, Mail Order, Warehouse and Distribution
Workers, I. L. W. U., C. I. 0., for the purposes of cellective bargain-
ing; and
(2) The engineers and firemen of the powerhouse, maintenance elec-
tricians, maintenance carpenters, maintenance painters, and general
maintenance men of the building maintenance and operating division
of the Company's mail order house, including the chief engineer of the
powerhouse and the leadman of the maintenance carpenters, to de-
termine whether or not they desire to be represented by International
Union of Operating Engineers, Local No. 36, A. F. L., for the purposes
of collective bargaining.
'AIR. WM. M. LEisERSON took no part in the consideration of the above
Decision and Direction of Elections.