Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

Apr 11, 1977

228 N.L.R.B. 1330 (N.L.R.B. 1977)

1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Montgomery Ward & Co., Incorporated and Interna-
tional Union of Electrical, Radio and Machine
Workers, AFL-CIO-CLC. Case 16-CA-6531
April 11, 1977
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
Upon an amended charge filed by the Internation-
al Union of Electrical, Radio and Machine Workers,
AFL-CIO-CLC, the General Counsel of the Nation-
al Labor Relations Board, by the Regional Director
for Region 16, issued a complaint on May 11, 1976,
against Respondent, Montgomery Ward & Co.,
Incorporated. The complaint alleges, in substance,
that Respondent violated Section 8(a)(5) and (1) of
the Act by refusing to recognize and bargain with the
Union on and after November 24, 1975, and by
refusing to furnish the Union with certain requested
information. Respondent's answer denies the com-
mission of any unfair labor practices and requests
that the complaint be dismissed.
On August 31, 1976, the Charging Party, the
General Counsel, and Respondent entered into a
stipulation in which they agreed that certain docu-
ments shall constitute the entire record herein' and
that no oral testimony is necessary or desired. The
parties expressly waived all intermediate proceedings
before an Administrative Law Judge and stated their
desire that this case be transferred to the Board for
the purpose of making findings of facts and conclu-
sions of law, and issuing an appropriate order. The
parties reserved only the right to file briefs.
By Order dated November 22, 1976, the Board
approved the stipulation, transferred the proceedings
to itself, and set a date for the filing of briefs.2
Thereafter, Respondent filed a timely brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record herein
as stipulated by the parties, as well as Respondent's
brief, and makes the following findings and conclu-
sions:
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Montgomery Ward & Co.,
Incorporated, an Illinois corporation, licensed to do
business in Oklahoma, is engaged in retail sales,
catalog sales, and repair service of merchandise at
numerous locations throughout the United States.
Respondent's repair service center at 3300 Santa Fe
Avenue, Oklahoma City, Oklahoma, is its only
facility involved herein.
During the past 12 months, in the course and
conduct of its business, Respondent received at its
Oklahoma City repair service facility, goods and
materials valued in excess of $50,000 which were
shipped directly from points outside the State of
Oklahoma. During the same period, Respondent
shipped goods and materials valued in excess of
$50,000 directly from its Oklahoma City repair
service facility to points outside the State of
Oklahoma.
The parties stipulated, and we find, that Montgom-
ery Ward & Co., Incorporated, is now, and at all
times material herein has been, an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that Interna-
tional Union of Electrical, Radio and Machine
Workers, AFL-CIO-CLC, is now, and at all times
material herein has been, a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issue
The question presented is whether Respondent
violated Section 8(a)(5) and (1) of the Act by refusing
to bargain with the Union on November 24, 1975,
and on several occasions thereafter, and by failing to
furnish certain information requested by the Union.
B. The Stipulated Facts
On September 16, 1975, the Board ordered3 that,
upon request, Respondent bargain collectively and in
good faith with the Union as the exclusive represen-
tative of its employees in a unit appropriate for
collective-bargaining purposes .4
By letter dated November 17, 1975, the Union
requested that the parties begin negotiations and that
i The stipulated record consists of the charge, complaint, answer, and the 1976, "Motion For Stay of Proceedings ." For reasons discussed below,
stipulation Respondent 's motion is hereby denied.
2 The Board's Order also indicated that, pending receipt of the parties' 3 Montgomery Ward & Co., Incorporated, 220 NLRB 373 (1975)
beefs, the Board would defer consideration of Respondent's August 27, 4 The unit includes-
228 NLRB No. 166
MONTGOMERY WARD & CO. 1331
Respondent furnish the Union with certain informa-
tion concerning all bargaining unit members. The
Union requested each employee's "Name, seniority
date, rate of pay, classification and address," as well
as information relative to fringe benefits; " i.e.,
insurance, holidays, overtime pay, pensions, profit
sharing and so on ...." 5 In responding to the
Union's letter on November 2, 1975, Respondent
stated its refusal to recognize the Union as bargain-
ing agent . On February 10, 1976, the Union sent
Respondent a mailgram which included, inter alia,
the Union's request for "notification of and the
opportunity to participate in any and all meetings
and/or discussions which might affect a unit employ-
ee's employment status, job rights, wages, probation
period and other conditions of employment." The
Union also indicated that it "continues to represent
all bargaining unit members" and requested copies of
all reprimands and writeups of unit members as well
as a meeting to discuss the grievance of one unit
employee. Respondent's reply, by letter dated Febru-
ary 18, 1976, declined the Union's "request for
notification and participation in meetings" as well as
the Union's "claim of recognition and representa-
tion." On two subsequent occasions, Respondent
again refused the Union's request to meet and
bargain.6
C. Contentions of the Parties
The Union alleges that it has continuously repre-
sented a majority of Respondent 's employees in the
above-described unit since April 26, 1974, and that it
has repeatedly requested the commencement of
negotiations with Respondent pursuant to the
Board 's bargaining order of September 16, 1975.
According to the Union, therefore , since the Union's
initial request on November 17, 1975, Respondent
has violated Section 8 (a)(5) and (1) by refusing to
bargain with the Union and by failing to furnish the
Union with certain requested information . Though
acknowledging receipt of the Union 's letters and
mailgram , Respondent denies their legal implications
and denies the Union 's allegations of refusal to
bargain inasmuch as the Union 's requests for
All service technicians and service clerks of Respondent's
central service department , Santa Fe Street facility, Oklahoma
City, Oklahoma, including inside and outside white line
technicians , television technicians, general technicians , repair
service clerks (parts clerks), vendor-charge-back clerk , service
contract telephone clerks and dispatcher, exclusive of office
clerical employees , professional employees , guards and supervi-
sors as defined in the Act.
5 The Union indicated that this information was requested so that the
Union could prepare for negotiations.
8 Respondent's refusals , which are contained in letters dated February 25
and March 26, 1976, respectively, are replies to letters from the Union dated
February 19 and March 23, 1976. The Union's February 19 letter, in
addition to requesting that bargaining begin, also included an offer "to
prove [the Union's] continuing majority through an impartial third party
bargaining are based on the Board's September 16,
1975, bargaining order. Respondent maintains that
the Board's Order is the subject of further supple-
mentary enforcement proceedings on application of
the Board before the United States Court of Appeals
for the Tenth Circuit 7 and that its denial of the
Union's allegations is necessary in order to protect its
legal position before the Tenth Circuit. Respondent
asserts, moreover, that, pending final disposition of
the Board's application for enforcement of its
September 16, 1975, Order before the court of
appeals, further proceedings herein should be sus-
pended and held in abeyance.
D. Discussion
We find no merit in Respondent's contention that
all action in this proceeding should be suspended and
held in abeyance until the court issues its decision in
the previous unfair labor practice proceeding. It is
well settled that collateral litigation does not suspend
the duty to bargain under Section 8(a)(5).8 Respon-
dent has not offered any newly discovered or
previously unavailable evidence in support of a
ruling different than that of the Board in the prior
proceeding.
We find, therefore, that Respondent's continuing
refusal to bargain with the Union on and after
November 17, 1975, violated Section 8(a)(5) and (1)
of the Act. Inasmuch as we conclude that the Union
requested certain information in its capacity as
bargaining representative of unit employees, we
further find that Respondent's failure to provide the
information violated Section 8(a)(5) and (1) of the
Act.
IV. THE EFFECTS OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth above have a
close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to industrial strife burdening and
obstructing commerce.
mutually agreeable to the Company and the Union." This request was
specifically declined in Respondent's February 25 letter. The Union's
request for bargaining in its March 23 letter was directed towards certain
employment practices of Respondent which allegedly discriminate against
female employees.
7 N LR B v Montgomery Ward & Co., Incorporated 554 F 2d 996 (C A.
10, 1977)
8 Metropolitan Petroleum Company of Massachusetts, Div. of Pittston
Company, 216 NLRB 404 (1975); Great Dane Trailers, Inc., 191 NLRB 6
(1971); Porta-Kamp Manufacturing Company, Inc, 189 NLRB 899 (1971).
Sec 10(g) of the Act provides , moreover, that the commencement of
proceedings under Sec. 10(e) or (f), which provide for court review of Board
orders , "shall not , unless specifically ordered by the court, operate as a stay
of the Board's order."
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices in violation of
Section 8(a)(5) and (1) of the Act, we shall order that
it cease and desist therefrom, and take certain
affirmative action designed to effectuate the policies
of the Act.
Based on the foregoing findings of fact and on the
entire record in this case, we make the following:
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. International Union of Electrical, Radio and
Machine Workers, AFL-CIO-CLC, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. By failing and refusing to bargain collectively
with the Union since November 17, 1975, as the duly
designated collective-bargaining representative of the
Company's employees in the appropriate unit de-
scribed above with respect to rates of pay, wages,
hours of employment, and other terms and condi-
tions of employment, Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) of the Act.
4. By failing and refusing to furnish the Union, as
requested, with the name, seniority date, rate of pay,
classification and address of all bargaining unit
members; information concerning fringe benefits
such as insurance, holidays, overtime pay, pensions
and profit sharing; and copies of all reprimands and
writeups of unit members, Respondent has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) of the Act.
5. By the foregoing conduct, Respondent has also
interfered with, restrained, and coerced its employees
in their exercise of the rights guaranteed in Section 7
of the Act and has thereby engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the
Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing 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 hereby orders that the Respondent,
Montgomery Ward & Company, Incorporated,
Oklahoma City, Oklahoma, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Failing or refusing to recognize and bargain
collectively, upon request, with International Union
of Electrical, Radio and Machine Workers, AFL-
CIO-CLC, as the exclusive bargaining representative
of its employees in the above-described unit.
(b) Failing or refusing to furnish the Union with
the name, seniority date, rate of pay, classification
and address of all bargaining unit members; infor-
mation on all current benefits for unit employees,
including insurance, holidays, overtime pay, pensions
and profit sharing; and copies of all reprimands and
writeups of unit members.
(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the
Act:
(a) Upon request, bargain collectively concerning
rates of pay, wages, hours of employment, and other
terms and conditions of employment with Interna-
tional Union of Electrical, Radio and Machine
Workers, AFL-CIO-CLC, as the exclusive represen-
tative of all the employees in the above-described
appropriate unit.
(b) Supply forthwith the aforesaid labor organiza-
tion with the information specified above in 1(b).
(c) Post at its place of business in Oklahoma City,
Oklahoma, copies of the attached notice marked
"Appendix." 9 Copies of said notice, on forms
provided by the Regional Director for Region 16,
after being duly signed by an authorized representa-
tive of Respondent, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous 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.
(d) Notify the Regional Director for Region 16, in
writing, within 20 days of this Order, what steps
Respondent has taken to comply herewith.
9 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice readmg "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
MONTGOMERY WARD & CO. 1333
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize and bargain
collectively upon request with International
Union of Electrical , Radio and Machine Work-
ers, AFL-CIO-CLC, as the exclusive bargaining
representative of:
All service technicians and service clerks of
Respondent's central service department,
Santa Fe Street facility, Oklahoma City,
Oklahoma , including inside and outside
white line technicians , television technicians,
general technicians , repair service clerks
(parts clerks), vendor-charge-back clerk,
service contract telephone clerks and dis-
patcher, exclusive of office clerical employ-
ees, professional employees, guards and
supervisors as defined in the Act.
WE WILL supply the aforesaid labor organiza-
tion with: the name, seniority date, rate of pay,
classification and address of all bargaining unit
members; information on all current benefits for
unit employees, including insurance, holidays,
overtime pay, pensions and profit sharing; and
copies of all reprimands and writeups of unit
members.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed in Section 7 of
the Act.
MONTGOMERY WARD &
CO., INCORPORATED