Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

Jun 19, 1967

165 N.L.R.B. 652 (N.L.R.B. 1967)

652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Montgomery Ward & Co., Incorporated and
Retail Clerks International Association,
Local No. 1612 , AFL-CIO. Case 19-CA-3571.
June 19,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
Upon a charge filed by Retail Clerks International
Association, Local No. 1612, AFL-CIO, herein
called the Union, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 19, issued a complaint dated
February 1, 1967, against Montgomery Ward & Co.,
Incorporated, herein called the Respondent, alleging
that the Respondent had engaged in and was
engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) and Section 2(6)
and (7) of the National Labor Relations Act, as
amended. Copies of the charge, complaint, and
notice of hearing before a Trial Examiner were duly
served upon the Respondent.
With respect to the unfair labor practices, the
complaint alleges, in substance, that on or about
December 8, 1966, the Union was duly certified by
the Board' as the exclusive bargaining
representative of Respondent's employees in the
unit found appropriate by the Board and that, since
on or about January 6, 1967, and thereafter,
Respondent has refused and is refusing to recognize
or bargain with the Union as such exclusive
bargaining representative, although the Union has
requested and is requesting it to do so. On
February 7, 1967, the Respondent filed its answer,
admitting in part, and denying in part, the
allegations of the complaint. It contended that the
unit described in paragraph 8 of the complaint did
not constitute a unit appropriate for bargaining
within the meaning of Section 9 of the Act, and that
the determination of the unit had been controlled by
the extent to which the Union had succeeded in its
organizational efforts, in violation of Section 9(c)(5)
of the Act.
On March 23,1967, the General Counsel filed with
the Board a motion for summary judgment, asserting
that the sole defense and issue raised by the
Respondent was previously litigated in Case
19-RC-4003, and that there were no issues of fact or
law requiring a hearing in this proceeding. For these
reasons, the General Counsel moved for the
issuance of a Decision and Order finding the
violations as alleged in the complaint. Thereafter, on
March 27, 1967, the Board issued an order
transferring proceeding to the Board, and, on the
same date, a notice to show cause on or before
April 10, 1967, why the General Counsel's motion for
summary judgment should be granted. On April 4,
1967, the Respondent filed an answer opposing
General Counsel's motion for summary judgment.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in
connection with this case to a three-member panel.
Upon the entire record in this case, the Board
makes the following:
Ruling on the Motion for Summary J udgment
In its answer to the motion, Respondent contends,
inter alia, that it is entitled to an evidentiary hearing
to insure full litigation of certain alleged facts. This
contention is without merit. Respondent's answer to
the complaint and its answer to the General
Counsel's motion establish that Respondent is
seeking to relitigate matters, which were, or which
could have been, decided by the Board in the prior
representation proceeding: specifically, the
appropriateness of the certified unit under the Act.
The record before us establishes that on July 25,
1966, the Union filed a petition in Case 19-RC-4003,
seeking to represent all regular full-time and regular
part-time employees employed by the Employer at
its catalog stores located in Kennewick, Pasco, and
Richland, Washington. After a hearing, the Acting
Regional Director for Region 19 issued a Decision
and Direction of Election on September 30, 1966, in
which he found appropriate for bargaining the
following unit of employees:
All regular full-time and regular part-time
employees employed by the Employer at its catalog
sales stores in Kennewick, Pasco, and Richland,
Washington, excluding confidential employees,
guards, and store managers and other supervisors as
defined in the Act.
Following the Decision and Direction, the
Respondent filed a timely request for review,
contending that the Acting Regional Director's unit
finding was inappropriate. On October 26, 1966, the
Board denied review by telegraphic order.
On November 29, 1966, following a secret mail-
ballot election conducted under the supervision of
the Regional Director of Region 19, the mail ballots
were opened and counted: 13 votes were cast for
Petitioner and 1 against. There were no challenged
ballots. On December 8, 1966, the Union was
certified by the Acting Regional Director for Region
19 as the exclusive bargaining representative of
Respondent's employees in the unit found
appropriate by the Board.
On December 15, 1966, the Union requested that
the Respondent bargain collectively with it. This
request was refused on January 6, 1967, and on
January 17, 1967, the Union filed the charge upon
which these proceedings are predicated.
It is well settled that in the absence of newly
discovered or previously unavailable evidence, a
' Decision and Certification of Representative in Case
19-RC-1003 (not published in NLRB volumes)
165 NLRB No. 78
MONTGOMERY WARD & CO.
respondent in an 8(a)(5) proceeding is not entitled to
litigate issues which were or could have been raised
in a related representation proceeding." Here, the
Respondent has not offered to adduce at a hearing
any newly discovered or previously unavailable
evidence.; Inasmuch as the Respondent has or could
have litigated in the representation proceeding the
issues it presently asserts, it has not raised any issue
which is properly triable in the instant unfair labor
practice proceeding.
As all material issues have been previously
decided by the Board, or are admitted by
Respondent, there are no matters requiring a
hearing before a Trial Examiner. Accordingly, the
General Counsel's motion for summary judgment is
granted.4 On the basis of the record before it, the
Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, an Illinois corporation with
headquarters located in Chicago, Illinois, operates a
nationwide chain of retail and mail order catalog
stores. Respondent's three catalog stores located in
Kennewick, Pasco, and Richland, Washington, are
involved herein. During the course and conduct of
the Respondent's catalog store operations in the
above cities, Respondent does an annual retail
business valued in excess of $500,000. During the
calendar year 1966, the Respondent purchased
goods and merchandise valued in excess of $50,000,
which purchases were shipped to the above stores
from outside the State of Washington.
Respondent admits, and we find, that Respondent
is, and has been at all times material herein, an
Employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks International Association, Local No.
1612, AFL-CIO, is a labor organization within the
meaning of Section 2(6) and (7) of the Act.
z Pittsburgh Plate Glass Company v N L.R B , 313 U S 146,
Collins &AikmanCorporation, 160 NLRB 1750. _
3 Respondent 's contention that the Board 's unit determination
was controlled by the extent to which the Union succeeded in its
organizational efforts, contrary to Sec 9(c)(5) of the Act, is clearly
an issue which Respondent could have raised in the
representation proceeding. As the Respondent' s request to the
Board for review of the Regional Director's unit determination
demonstrates , Respondent failed to do so At any rate, if
Respondent 's contention with regard to the alleged violations of
Sec 9(c)(5) is based , as it would appear, on its claim that the
Union made an inadequate showing of interest in the appropriate
unit, its position is wholly without foundation Board regulations
requre only that a union have a 30-percent showing of interest in
the aggregate unit for which it petitions , and not , as Respondent
claims, in each subdivision or location Assuming therefore, that
Respondent could prove its charge that the Union did not have a
30-percent showing of interest at one of the three store locations
which comprise the unit, this fact would be immaterial to the
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
653
The following employees of Respondent constitute
a unit appropriate for collective bargaining within
the meaning of Section 9(b) of the Act:
All regular full-time and regular part-time
employees employed by the Employer at its catalog
sales stores in Kennewick, Pasco, and Richland,
Washington, excluding confidential employees,
guards, and store managers and other supervisors as
defined in the Act,
2. The certification
On or about November 29, 1966, a majority of the
employees of Respondent, voting in a secret .nail-
ballot election conducted among the employees of
said unit under the supervision of the Regional
Director for Region 19, designated the Union as their
representative for the purpose of collective
bargaining with Respondent. On December 8, 1966,
the Board certified the Union as the exclusive
collective-bargaining representative of the
employees in said unit and the Union continues to be
such representative.
B. The Request to Bargain and the Respondent's
Refusal
Commencing on December 15, 1966, and
continuing to date, the Union has requested and is
requesting Respondent to bargain collectively with it
as the exclusive collective-bargaining representative
of all the employees in the above-described unit. On
January 6, 1967, and continuing to date, Respondent
did refuse, and continues to refuse, to bargain
collectively with the Union as exclusive collective-
bargaining representative of all employees in said
unit.
Accordingly, we find that the Union was duly
certified by the Board as the collective-bargaining
present case If Respondent 's contention is based on an asserted
relationship between the " extent of organization" and the three-
store unit found, this factor alone would not be determinative of
the question whether Sec. 9(c)(5) had been violated In Western
and Southern Life Insurance Company, 163 NLRB No. 14, the
Board noted , in rejecting a similar agument by the respondent
therein, that Sec 9(c)(5) "was merely intended to preclude the
Board from basing its unit determination solely on 'extent of
organization' in the absence of other criteria of appropriateness "
Our unit determination in the instant case clearly rests on such
other tests of appropriateness
4 Respondent 's contention that the Board is powerless to act
upon a motion for summary judgment without first referring the
matter to a Trial Examiner has no basis in law or policy. When
there are no questions of fact to be determined, and the issues to
be resolved are only matters of law, the Board is inherently
empowered with discretion to transfer the case directly to itself
for decision See E-Z Davies Chevrolet , 161 NLRB 1380.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative of the employees of the Respondent
in the appropriate unit described above in the
Board's certification, and that the Union at all times
since December 8, 1966, has been and now is the
exclusive bargaining representative of all the
employees in the aforesaid unit, within the meaning
of Section 9(a) of the Act. We further find that
Respondent has, since January 6, 1967, refused to
bargain collectively with the Union as the exclusive
bargaining representative of its employees in the
appropriate unit, and that, by such refusal, the
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in
section III, above, occurring in connection with its
operations described in section I, above, have a
close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and
obstructing commerce and the free flow of
commerce.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act, we shall order that it cease
and desist therefrom, and, upon request, bargain
collectively with the Union as the exclusive
representative of all employees in the appropriate
unit , and, if an understanding is reached, embody
such understanding in a signed agreement.
CONCLUSIONS OF LAW
1. Montgomery Ward & Co., Incorporated, is an
Employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Retail Clerks International Association, Local
No. 1612, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All regular full-time and regular part-time
employees employed by the Employer at its catalog
sales stores in Kennewick, Pasco, and Richland,
Washington, excluding confidential employees,
guards, and store managers and other supervisors as
defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since December 8, 1966, the above-named
labor organization has been the exclusive
representative of all employees in the aforesaid
appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5 In the event that this Order is enforced by a decree of a
United States Court of Appeals, there shall be substituted for the
5. By refusing on January 6,1967, and at all times
thereafter, to bargain collectively with the above-
named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain,
Respondent has interfered with, restrained, and
coerced, and is interfering with, restraining, and
coercing, employees in the exercise of the rights
guaranteed to them in Section 7 of the Act, and has
thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the
Act.
7.' The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Montgomery
Ward & Co., Incorporated, Chicago, Illinois, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
wages, hours, and other terms and conditions of
employment, with Retail Clerks International
Association, Local No. 1612, AFL-CIO, as the
exclusive bargaining representative of its employees
in the following appropriate unit;
All regular full-time and regular part-time
employees employed by the Employer at its catalog
sales stores in Kennewick, Pasco, and Richland,
Washington, excluding confidential employees,
guards, and store managers and other supervisors as
defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the rights
guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit, with
respect to wages, hours, and other terms and
conditions of employment, and, if an understanding
is reached, embody such understanding in a signed
agreement.
(b) Post at the three stores comprising the
appropriate unit copies of the attached notice
marked "Appendix."5 Copies of said notice, to be
furnished by the Regional Director for Region 19,
after being duly signed by Respondent's
representative, shall be posted by Respondent
words "a Decision and Order" the words "a Decree of the United
States Court of Appeals Enforcing an Order "
MONTGOMERY WARD & CO. 655
immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 19, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as
amended , we hereby notify you that:
WE WILL NOT refuse to bargain collectively
with Retail Clerks International Association,
Local No. 1612 , AFL-CIO, as the exclusive
representative of the employees in the
bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL , upon request , bargain with the
above-named Union as the exclusive
representative of all employees in the
bargaining unit described below, with respect to
wages, hours, and other terms and conditions of
employment, and, if an understanding is
reached, embody such understanding in a
signed agreement. The bargaining unit is:
All regular full-time and regular part-time
employees employed by the Employer at its
catalog sales stores in Kennewick, Pasco,
and Richland, Washington, excluding
confidential employees, guards, and store
managers and other supervisors as defined
in the Act.
MONTGOMERY WARD&
CO., INCORPORATED
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 327 Logan Building, 500 Union Street,
Seattle, Washington 98101, Telephone 583-4532.