Montgomery Ward & Co.

In the Matter Of MONTGOMERY WARD & COMPANY and RETAIL CLERKS INTERNATIONAL PROTECTIVE ASSOCIATION,. AFFILIATED WITH THE A. F. L. Case No. 7-B-1877.-Decided February 13,1945 Mr. William B. Powell, of Chicago, Ill., for the Company. Mr. George S. Fitzgerald, of Detroit, Mich., for the A. F. L. Mr. Nicholas J. Rothe, of Detroit, Mich., for the C. I. O. Mr. David V. Easton, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon an amended petition duly filed by Retail Clerks International Protective Association, affiliated with the A. F. L., herein called the A. F. L., alleging that a question affecting commerce had arisen con- cerning the representation of employees of Montgomery Ward & Com- pany, Royal Oak, Michigan, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Robert J. Wiener, Trial Examiner. Said hearing was held at Detroit, Michigan, on December 27 and 28, 1944. The Com- pany, the A. F. L.,1 and United Retail , Wholesale and Department Store Employees of America, C. I. 0., and its Local 332, herein collec- tively called the C. 1. 0., appeared, participated, and were afforded full opportunity to be heard, to examine and cross-examine ,witnesses, and to introduce evidence bearing on the issues. At the hearing, the C. I. O. moved to dismiss the petition herein. The Trial Examiner referred this motion to the Board. For reasons stated in Section III, infra, the motion is granted. 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. Upon the entire record in the case, the Board makes the following : ' The A. F. L. also appeared on behalf of its Local 1514. 60 N. L.R.B,No.108 - 574 MONTGOMERY WARD & COMPANY FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY 575 Montgomery Ward & Company, an Illinois corporation, is-engaged in the sale and distribution of general merchandise at retail through the media of mail order houses and retail stores. The Company oper- ates 9 mail order houses and approximately 650 retail stores through- out the United States. The Company owns and operates 4 retail stores in the Detroit, Michigan, metropolitan area, and we are solely concerned herein with one of these stores, namely : the retail store located at Royal Oak, Michigan. Approximately 90 percent of the merchandise sold by the 4 stores in this area is purchased from sources located in States other than the State of Michigan, and less than 1 percent of the sales of these stores is shipped to points outside the State of Michigan. Orders from the catalogue of the Company are 'taken in each of the 4 retail stores in this area, and 90 percent of such catalogue merchandise is shipped directly to the Company's customers' from its warehouse located in Chicago, Illinois. The total mail order business done by the 4-stores approximates 3 percent of the total vol- ume of lusiness. This percentage is the same with particular refer- ence to the business of the Royal Oak store. In view of the foregoing facts, we find that the Company, in the operation of its Royal Oak store, is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED Retail Clerks International Protective Association, and its Local 1514, are labor organizations affiliated with the American Federation of Labor, admitting to membership employees of the Company. United Retail, Wholesale and ' Department Store Employees of America, and its Local 332, are labor organizations affiliated with the Congress of Industrial Organizations, admitting to membership em- ployees of the Company. _ III. THE ALLEGED QUESTION CONCERNING REPRESENTATION On October 16, 1944, the A. F. L.• filed the original petition in this proceeding seeking an investigation and certification of representa- tives of employees in the Company's Royal Oak store. Thereafter, in November, it orally requested recognition from the Company as the collective bargaining representative of certain employees in that store, and in the same month filed the amended petition herein. By letter dated December 11, 1944, addressed to the Company's district man- ager, the A. F. L. repeated its request for recognition, and on Decenl- 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her 21, 1944, the Company replied by letter stating that "this is - a matter to be decided by the National Labor Relations Board ..." On January 13, 1942, the C. I. O. was certified as the collective bar- gaining representative of employees of the Company 's Royal Oak store.2 Subsequently , on February 19, 1942, the Company and the C. I. O. reached an accord , which was reduced to memorandum form, upon certain provisions with respect to a collective bargaining agree- ment. However, the C. I. O. refused to execute a contract consisting solely of these provisions , and the memorandum was not signed by either of the parties . In a letter dated November 5, 1942, the C. I. O. -requested the Company to meet with it and negotiate concerning wages and other matters. Negotiations were conducted by the parties pur- suant to the C. I. O.'s request , but no agreement was consummated re- garding the issues raised . On December 7, 1942, the C. I. O. resorted to the National War Labor Board for determination of the issues of wages and whether or not union shop and check -off seniority, and arbitration provisions should be included within a collective bargain- ing agreement between the parties. Hearings upon these issues were conducted in January 1943 before a mediation panel , which thereafter issued a report' unanimously recommending the inclusion within a collective bargaining agreement of maintenance -of-membership and check-off, seniority, and arbitration clauses. At that time the media- tion panel did not make any report with respect to wages, but appar- ently decided to issue a separate report after a study had been made by the Bureau of Labor Statistics of the wages paid at the Company's stores and by its competitors . These recommendations were adopted in toto by the National War Labor Board in its opinion and directive order issued August 20, 1943 .3 The study of the Bureau of Labor Statistics was completed on July 1, 1943, and copies were sent to the parties . However, the parties failed to reach an agreement on wages , and a further hearing was held before a mediation panel on September 23, 1943. Thereafter the National War Labor Board issued a directive order on May 22, 1944, supplemetlting its directive order of August 20, 1943, by providing that certain terms and conditions of employment respecting wages should govern the relations between the parties 4 The two directive orders were later reaffirmed by the National War Labor Board in -a directive order issued December 14, 1944,5 which provided that : ' This certification is reported in 36 N -L R B 204 8 See in Re Montgomery Ward and Company, 10 War Lab . Rep 415; Case No 3930-CS-D. 4In Re Montgomery Ward and Company, Inc, 16 War Lab. Rep. 399, Case No. 3930-D. 5 In Re Montgomery Ward and Company, Inc, War Lab Rep , Case No 3930-CS-D. Many of the foregoing facts are set forth in the opinions accompanying the directive orders issued by the National War Labor Board, of which we take official notice. MONTGOMERY WARD & COMPANY 577 The terms and conditions of employment set forth in the August 20, 1913 and May 22, 1944 directive orders shall be in- corporated in a signed agreement . . . Meanwhile, negotiations between the Company and. the C. I. O. affecting all four stores in the Detroit, Michigan, metropolitan area, including the Royal Oak store, were being continued and a proposed agreement, including provisions for back pay, was submitted to the Company by the C. I. O. at a meeting in July 1944. At a subsequent meeting held in the same month, the C. I. O.'s Regional Director in- sisted that, in accordance with the directives of the National War Labor Board, a maintenance-of-membership and check-off provision be-included within the-agreement, and the Company thereupon broke off negotiations. - At the hearing, the C. I. O. moved for a dismissal of the proceed- ing, contending, in effect, that it had been compelled to resort to the processes of the National War Labor Board, that Directives issued by that agency were not complied with by the Company, that it is en- titled to a reasonable time within which to obtain it contract including the terms of such Directives, and that it is entitled to a further reason- able period within which "to put that contract into force." As a newly certified bargaining representative, within the first year of its designation bythe Board, the C. I. O. initiated proceedings before the National War Labor Board in order to resolve' the substan- tial issues relating to collective bargaining ° which had arisen between it and the Company.' Directives disposing of these matters were then issued by that agency and were later reaffirmed by it on December 14, 1944, with the statement that the terms and conditions of employment which they contained were to be "incorporated in a signed agreement." Had the case been brought before us for decision after the institution of the National War Labor Board proceedings and prior to the issuance of the Directives, we are satisfied that, in accordance with our well- settled principles, we would have dismissed the petition.$ In Matter of Kennecott Copper Corporation 9 we held : ... An election . . . might serve to negate the proceedings of the War Labor Board, require new proceedings before that Board, 8 As noted above, questions concerning wages, union shop and check-off, seniority and ar- bitration were submited to the National War Labor Board for determination. T Inasmuch as the subject mater of these issues was not covered by the memorandum of February 19, 1942, and since the parties did not sign that document, we find no merit in the Company's assertion to the effect that the CIO has had the benefits of a full collective bar- gaining relationship Significantly, an A. F. L. witness testified that when she'presented grievances as the CIO's chief steward at the Royal Oak store, no mention was ever made of the 1942 memorandum 8 Matter of Aluminum Company of America, 53 N L R B. 593; Matter of Kenneeott Copper Corporation, Nevada Mines Division, 51 N. L. R B. 1140. 9 See footnote 8, supra. 628363-45-vol 60-38 ,578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and create uncertainty and unsettled bargaining conditions for an additional indeterminate period. From the standpoint of stable labor relations , it is undesirable to penalize a statutory representative for unavoidable delays consequent upon its volun- tary acceptance of orderly procedures established by governmental authority for the adjustment of differences with an employer: To charge a certified bargaining representative with such delays would have the effect of discouraging resort to such orderly pro- cedures and promoting industrial strife and unrest which the Act was designed to avoid . . . [Italics supplied.] And, if the matter were to have come to us • for determination early in the term of a contract of reasonable duration entered into between the Company and the C. I. O. embodying the provisions of the Direc- tives, we also would have refused to direct an election, thus permitting the employees the enjoyment of these contractual gains 10 In the present posture of the case the content of the issued Direc- tives reaffirmed as recently as December 1944, has not been incorpo- rated into a signed agreement , as ordered . We are asked to afford a labor organization , forced into a large measure of inactivity by recourse to the peaceful means of settlement provided by the Govern. ment,ll a reasonable period within which to attain this end, and , achiev-. ing it, an additional reasonable time to insure to the employees its benefits. This request, in our opinion, is entirely justified, an i d we shall grant it. Accordingly, eve find that no question affecting commerce exists at this time concerning the representation of employees of the Company's Royal Oak store. The A.F . L.'s amended petition will be dismissed.12 - ORDER Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the National Labor ,Relations Board hereby orders that the amended petition for- an investigation and certification of representatives of employees of Montgomery Ward & Company, Royal ,Oak, Michigan , filed by Retail Clerks International Protective Asso- ,ciation, affiliated with the A. F. L., be, and it hereby is, dismissed. MR. GERARD D. REILLY, concurring : I concur in the view that the petition should be presently -dismissed,, but on grounds which the majority opinion has not set forth. 10 Matter of Aluminum Company of A ae.nca, 58 N L R B 24. " There is no evidence that the C I 0 failed in any manner to act expeditiously. 12 We wish to make it clear that the matter contained in the concurring opinion, which was fully considered by us and rejected as irielevant , forms no part of the basis for our decision. MONTGOMERY WARD & COMPANY 579 Judicial notice iiiay be taken of the fact that"the Royal Oak Store, the-subject of these proceedings, is one of the retail outlets of Mont- gomery Ward & Company,-which is being operated by the Secretary of War pursuant to an Executive Order of the President'13 based in part on Section 3 of the War Labor Disputes Act, popularly known as the Smith-Connally Act.14 The seizure of these properties has been the subject of litigation in the United States District Court of the North- ern District of Illinois,15 and the Government has-announced its inten- tion of appealing a judgment of that Court denying a petition for an injunction and declaratory judgment. Since a stay has been granted pending appeal, it is apparent that the War Department will continue to operate this enterprise for a considerable period. We are there- fore faced with the question as to-whether or not this is an appropriate time to issue an order for an election. Since the Secretary of War's authority over labor relations is lim- ited by Section 2 of the Order, which directs him, inter alia, to "observe the terms and conditions of the directive orders of the National War Labor Board, including those dated June 6 and 16, 1944, and Decem- ber 14 and 15, 1944, it would appear that he would not be authorized to enter into negotiations for other terms and conditions of employ- ment. Under these circumstances, selection of a new bargaining agent would be nugatory. Consequently, an election at this time would 'be premature. I think the dismissal of the petition should be without prejudice, however, since the case in other respects is not readily distinguishable from the Yale and Towne case." 13 Executive Order No 9508, dated December 27, 1944 14 Act of June 25, 1943, U. S Code, Title 50, Sec. 1503. 15 U S v. Montgomery Ward it Co., No. 44C1611 (15 LRR 745) - 10 Matter of Automatic Transportation Company, Division of The Yale it Towne Mfg Co , 59 N L. R. B. 970. -