Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

Nov 1, 1945

64 N.L.R.B. 674 (N.L.R.B. 1945)

In the Matter Of MONTGOMERY WARD & CO., INCORPORATED and INTER-
NATIONAL LONGSHOREMEN'S AND WAR EHOUSEMEN 'S UNION, CIO
Case No. 16-R-1392.-Decided November 1, 1945
Mr. D. M. Norton, of Chicago, Ill., and Messrs. J. H. Cason and
F. H. McMaster, both of Fort Worth, Tex., for the Company.
Mrs. Ruth Butcher and Mr. Robert Hallowaa, both of Fort Worth,
Tex., and Messrs. Howard Goddard and Sid Cohen, both of Dallas,
Tex., for the Union.
Mr. David V. Easton, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon a petition duly filed by International Longshoremen's and
Warehousemen's Union, CIO, herein called the Union, alleging that
a question affecting commerce had arisen concerning the representa-
tion of employees of Montgomery Ward & Co., Incorporated, Fort
Worth, Texas, herein called the Company, the National Labor Rela-
tions Board provided for an appropriate hearing upon due notice
before H. Carnie Russell, Trial Examiner. The hearing was held at
Fort Worth, Texas, on August 27 and 28, 1945. The Company and the
Union appeared and participated. All parties were afforded full op-
portunity 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. All parties were afforded an opportunity to file briefs
with the Board. On September 17, 1945, the Company filed a motion
with the Board to reopen the hearing. After due consideration, the
motion is hereby denied.
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, is a corporation licensed
to conduct business in the State of Texas . The Company is engaged in
64 N. L . It. B., No. 116.
674
MONTGOMERY WARD & CO., INCORPORATED 675
the business of retail distribution of merchandise. For this purpose
it owns and operates a number of mail order houses and retail stores in
various parts of the United States. We are concerned herein solely
with its mail order house and retail store located at Fort Worth,
Texas.
During the period between August 1, 1944, and January '01, 1945,
the Company's Fort Worth retail store purchased from points out-
side the State of Texas merchandise valued at approximately $1,800,-
000. During the same period, its sales to points outside the State of
Texas amounted to approximately $9,000. Also during this period,
the Fort Worth mail order house purchased from points outside the
State of Texas merchandise valued at approximately $6,800,000, and
sold to points outside the State merchandise valued at about
$4,500,000.
We find that the Company is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
International Longshoremen's and Warehousemen's Union, affili-
ated with the Congress of Industrial Organizations, is a labor organi-
zation admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as the
exclusive bargaining representative of certain of its employees until
the Union has been certified by the Board in an appropriate unit or
units.
A statement of a Field Examiner of the Board, introduced into evi-
dence at the hearing, indicates that the Union represents a substantial
number of employees in the units hereinafter found 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 Act.
IV. THE APPROPRIATE UNITS
A. The contentions of the parties
The Union seeks a single unit comprised of employees engaged in
certain departments of the Company's Fort Worth mail order house,2
1 The Field Examiner reported that the Union submitted 851 designations ; and that the
Company employed 243 employees in its retail store and 1,360 employees in its mail
order house.
2 The Union would include the employees in the following departments : 508 Central Pit;
507 Factory Order ; 412 Order Control Accounting ; Packing and Billing ; 634 2A Floor ;
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
excluding employees engaged in other departments ," supervisory, of-
fice clerical and technical employees ; and of employees of the Com-
pany's Fort Worth retail store, excluding department managers,
assistant department managers , employees of the cashiering , adjust-
ment, personnel , purchasing , and advertising departments , the secre-
tary to the store manager , and all supervisory , office clerical and
technical employees . The Company contends that this unit is inap-
propriate ; it urges that two separate units be established consisting
of all employees in the snail order house and the retail store, respec-
tively, except for executives and supervisory employees.
B. One or two units
All the Company's Fort Worth operations are located in an eight-
story building. The retail store occupies the ground floor of this
building, and the remaining seven floors are used and occupied
principally by the mail order house. The store manager has com-
plete authority and supervision over the store employees, and the
mail order house manager has similar authority and supervision
over the mail order house employees. Each operation has its own
personnel office, and retains to itself the right to hire, discharge or
discipline its own employees. There is no interchange of personnel
between the two operations, nor are there promotions from one opera-
tion to the other. Neither manager exercises any authority or con-
trol over employees other than those engaged in his operation, nor
does either consult with the other with respect to employee problems.
Salaries, hours of employment, and other working conditions of the
store employees conform generally to those of other retail stores in
the City of Fort Worth. Likewise, salaries, hours of employment,
and other working conditions in the mail order house conform gen-
erally to those of other mail order houses in the vicinity. Conse-
quently, there is a difference between the two operations in the length
of the working day and the basic rate of pay. Consideration of the
foregoing circumstances impels the conclusion that the employees in
each operation comprise a separate appropriate unit.
634 2B Floor ; 634 First Floor ; 634 Third Floor, 634 Fourth Floor ; 634 Fifth Floor ; 6't4
Sixth Floor , 634 Seventh Floor , 631 Central Repair Shop ; 511 Shipping, 812 Engineering,
812 Passenger Elevators , 812 Porters ; 813 Normal Maintenance ; 622 Package Opening,
512 Trucking; Receiving, 516 Supplies, 941 Cafe; 502 Mail Opening. 503 Order Reading,
Multigraphing ; 312 House Communication , 505 Entry ; 504 Index. and 911 Howe
Catalogue.
7 The Union would exclude the employees in the following departments , 411 Accounting;,
Inspection, Catalogue Unit Control ; 801 Telephone and Telegraph , Supervision , 931
House Time Payment ; 461 Protection Service ; 421 Accounts Payable ; 301 Management
Control; 441 Budgetary Control ; 514 Traffic, 451 Credit Oider, Credit Union. 312
Medical ; 401 Controls Division General ; Stock Control ; 601 ,Merchandise Division General ;
515 Industrial Engineering ; 501 Operating Division General Personnel, 433 General
Cashiering ; 612 Stock Record; and 621 Central Adjustment and Coirespondence.
MONTGOMERY WARD & CO., INCORPORATED
C. The specific composition of the units
1. The mail order house
677
As previously noted, the Union seeks to represent employees in
certain departments,-1 excluding supervisory, office clerical,5 and
technical employees, and employees in other departments.° It at-
tempts to justify its position asserting that the persons employed in
the departments which it seeks to include are engaged primarily in
handling or filling orders or are otherwise directly engaged in the
mail order process, perform manual labor, or are employed in "on
schedule" work. However, an examination of the Union's desired
inclusions and exclusions reveals that there is no logical justifi-
cation for its position. Thus, certain of the departments which the
Union would exclude are an integral part of the mail order process.
Again, while the Union would exclude departments whose work is
primarily clerical in nature , several of the departments which it de-
sires to include are also primarily clerical in nature. Also, several
of the excluded departments engage or may engage manual workers.
And, finally, several classifications which the Union would include
are not "on schedule" workers, whereas many excluded employees
work "on schedule." Therefore, we are of the opinion that all em-
ployees of the mail order house, except for certain exclusions herein-
after set forth, properly comprise a collective bargaining unit.
Upon the basis of the record, we find that all employees of the
Company's Fort Worth, Texas, mail order house, excluding employees
in the following departments : personnel,8 medical,' protection serv-
ice,10 and industrial engineering; 11 confidential employees; 12 execu-
tive; and house managers, merchandise managers , operating man-
agers, department heads, and all other supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such
action, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
4 See footnote 2, supra
5 However , the Union would include incidental clerical employees engaged in those
departments which it desires to represent.
See footnote 3, supra.
' The term "on schedule" signifies that a definite time-study standard has been estab-
lished for the work, and that an employee should complete a number of units of work
in a given period of time.
B The exclusion of workers in this department is based upon the fact that they are
confidential employees.
9 The employees in this department are professional workers such as doctors and nurses.
"These employees perform certain monitorial duties.
11 The employees in this department are engaged in time-study work.
12 I. e., all employees who in the normal course of their duties acquire confidential informa-
tion directly pertaining to labor relations,
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The retail store
As noted above, the Union desires to represent all employees in the
Company's Fort Worth retail store, with the exception of specified
employees and employees in certain departments, whereas the Com-
pany desires that all employees, except supervisory employees, be
included. The Company concedes that the store manager, the store
operating manager, the store merchandise manager, the "A" and "C"
lines merchandisers; 3 and the personnel manager are supervisory em-
ployees, and the record indicates that the secretary to the store manager
is a confidential employee. We shall exclude these employees in ac-
cordance with the Union's request. A dispute exists with respect
to the following employees :
Department heads and assistant department heads: 14 Each depart-
ment head is responsible for the management of his department, and is
authorized to make reports to his superiors regarding the ability, quali-
fications, and demeanor of his subordinates. The assistant department
head assists the department head in all of the latter's duties, and, in his
absence, takes his place, assuming all his duties and responsibilities.
We are of the opinion that the interests of these employees are identi-
fied with management, and we shall exclude them.
Office clerical employees: These employees consist of the main cash-
ier, assistant cashiers, clerks,15 pay-roll clerks, assistant pay-roll
clerks, stock record clerks, assistant stock records clerks, and sales re-
port clerks. The record indicates that the main cashier has authority
over her subordinates similar to that exercised by department heads;
consequently, we shall exclude her. However, all other clerical em-
ployees enumerated above perform duties similar to employees whose
inclusion within the unit is not disputed. We shall, therefore, include
them.
Adjustment department: The employees in this department pay all
refunds or adjustments to customers. Since they exercise no discre-
tion in the performance of their duties, no valid reason has been as-
serted by the Union which would warrant their exclusion from the
unit. We shall include them.
Personnel department: The employees in this department are di-
rectly concerned with the handling of employer-employee relations
in the retail store. We shall exclude them.
Advertising department: This department consists of an advertis-
ing manager, an artist, and a copy 'reader. These employees appear
13 The "A" and "C" lines merchandisers and the store merchandise manager constitute
the purchasing department of the retail store.
14 The Union referred to these employees as department managers and assistant depart-
ment managers.
11 The main cashier , assistant cashiers and clerks comprise the cashiering department.
MONTGOMERY WARD & CO., INCORPORATED 679
to be professional workers, not directly connected with the retail sale
of merchandise. We shall, therefore, exclude them.
We find that all employees of the Company's Fort Worth, Texas
retail store, including assistant cashiers, clerks, pay roll and assistant
pay-roll clerks, stock records and assistant stock records clerks, sales
report clerks, and adjustment department employees, but excluding
advertising department and personnel department employees, the sec-
retary to the store manager, the store manager, the store operating
manager, the store merchandise manager, the "A" and "C" lines mer-
chandisers, the personnel manager, department heads and assistant
department heads, main cashier, and all other supervisory employees
with authority to hire, promote, discharge, discipline, or otherwise
effect changes in the status of employees, or effectively recommend
such action, constitute a unit appropriate for the purposes of collec-
tive 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 elections by secret ballot among the em-
ployees in the appropriate units 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 ELECTIONS
By virtue of and pursuant to the power vested in the National La-
bor Relations Board by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article III, Section 9, of National Labor Rela-
tions Board Rules and Regulations-Series 3, 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, Fort Worth, Texas, 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 Sixteenth Region, acting in this mat-
ter as agent for the National Labor Relations Board, and subject to
Article III, Sections 10 and 11, of said Rules and Regulations, among
the employees in the units 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
any who have since quit or been discharged for cause, and have not
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been rehired or reinstated prior to the date of the elections, to deter-
mine whether or not they desire to be represented by International
Longshoremen's and Warehousemen's Union, affiliated with the Con-
gress of Industrial Organizations, for the purposes of collective
bargaining.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Direction of Elections.