Montgomery Ward & Co., Inc.

In the Matter Of MONTGOMERY WARD & COMPANY, INC., EMPLOYER and BUILDING AND CONSTRUCTION TRADES COUNCIL OF GREATER KANSAS CITY, A. F. OF L.,1 PETITIONER Case No. 17-R-1585.-Decided April 15,1947 Mr. D. M. Norton, of Chicago, Ill., for the Employer. Messrs. John J. Manning and Clif Langsdale, of Kansas City, Mo., for the Petitioner. Miss Eleanor Schwartzbach, of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon an amended petition duly filed, hearing in this case was held at Kansas City, Missouri , on November 12, 1946, before Charlotte Anschuetz, hearing officer.' The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the National Labor Relations Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Montgomery Ward & Company, Inc., an Illinois corporation, main- taining its principal office and place of business in Chicago, Illinois, is engaged in the sale and distribution of general merchandise through- out the United States. The Employer operates 9 mail order houses and more than 500 retail stores. This proceeding is concerned solely with the retail stores. During the year ending January 31, 1946, the Employer purchased goods amounting in value to approximately $5,000,000, approximately 95 percent of which was shipped to the store from points outside the State of Missouri. During the same period the Employer sold mer- i The petition and other formal papers were amended at the hearing to show the correct name of the Petitioner 2 United Mail Order , Warehouse and Retail Employees Union , Local 131 , affiliated with the United Retail , Wholesale and Department Store Employees of America, C. I 0 , herein called the C I. 0 , though served with notice , did not appear at the hearing or otherwise participate in the proceedings. 73 N. L R. B., No. 81 416 MONTGOMERY `YARD & COMPANY, INC. 417 chandise valued at approximately $4,500,000, approximately 5 percent of which was sold to purchasers located outside the State of Missouri. We find that the Employer is engaged in commerce within the mean- ing of the National Labor Relations Act. II. TIE ORG:INIZATION INVOLVED The Petitioner is a labor organization affiliated with the American Federation of Labor, claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of employees of the Employer. We find that a question affecting commerce has arisen concerning the representation of employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The Petitioner seeks a unit of maintenance carpenters and painters, including furniture finishers, at the Employer's retail store in Kansas City, Missouri. The Employer contends that the unit sought by the Petitioner is inappropriate, and that the plant-wide unit established by the Board for the Employer's retail store employees in a prior rep- resentation proceeding 3 should not be disturbed. On October 13, 1943, the Board, in the prior proceeding noted above, decided that retail store employees and mail order house employees of the Employer at Kansas City, should not be merged in a single unit, thereby rejecting the request of the Petitioner herein for a maintenance carpenter and painter unit composed of such employees in both sectors of the Employer's Kansas City operations. The Board found that such maintenance employees at the Employer's mail order house might constitute a separate unit or part of a plant unit, and after a self- determination election, certified the Petitioner as bargaining repre- sentative of these employees in a separate maintenance unit. Finding no evidence that the Petitioner herein had organized the maintenance carpenters and painters at the Employer's retail store, the Board did not direct a self-determination election for those employees and de- termined that retail store employees, including maintenance carpenters and painters, constitute a single plant unit. Although the record in the proceeding noted above did not indicate that the Petitioner herein had organized the carpenters and painters at the retail store, these em- ployees refused to participate in the election because the Petitioner was not on the ballot. ' Matter of Montgomery Wa d f Co , Incorporated , 53 N. L R B 1300. 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Following certification by the Board for the retail store unit, the C. I. 0 .1 entered into negotiations with the Employer, but executed no written contract for these employees. The carpenters and painters in the retail store retained their membership in the Petitioner and none of them joined the C. I. O. The Employer continued its practice of pro- curing carpenters and'painters from the Petitioner. These employees have refused to present grievances through the C. I. O. They did not receive the wage increases received by other employees in the retail store after the certification of the C. I. O. nor have they benefited by any bargaining between the Employer and the C. I. O. The carpenters and painters at the Employer's retail store perform most of their work in the carpenter and painters shops in the basement of the store. They report to work 2 hours earlier than the other employees, and work on a 5-clay week.5 Under all the circumstances, we are of the opinion that the separate unit sought is appropriate for the purposes of collective bargaining 0 The Employer would exclude, and the Petitioner include, extra employees. The Employer employs at its retail store one regular sand one extra. painter, a furniture refinisher, and one regular, one extra, and one apprentice carpenter. These extra employees in general per- form duties similar to those of the regular employees. They have the same working conditions as the latter, and are full-time employees. Immediately upon employment they receive merchandise discounts. After 30 days' employment, they are eligible for holiday wages; after 00 days, for the Employer's insurance program; and after 1 year, for vacations. One of these extra employees has been with the Employer for 5 months. Although the Employer contends that extra employees are temporary employees, it was unable to estimate an approximate date when their services will be terminated. Inasmuch as these work- ers are presently full-time employees and engage in work similar to that performed by others in the unit, we do not regard the contingency that they may be discharged at some indefinite future date as justifying their exclusion from the unit. Accordingly, we shall include them in the unlt.7 We find that all carpenters and painters at the Employer's retail store at Kansas City, llMissouri, including furniture finishers, extra and apprentice carpenters, and extra painters, but excluding all super- 4 See footnote 2 above ' The other employees in the retail store work 6 days a week. "Matter of Gulf Oil Corporation, 72 N L R B. 895, Matter of Rainbow Lithograph- tiny Company, 69 N L. R B 1383 ; Matter of Cleveland Graphite Bronze Company, 69 N L R B 1350 ; Matter of A. L. Mechling, et al., 69 N. L R. B. 838; Matter of Chickasaw Wood Paoduct Company, 65 N L R B 664. ' See Matter of J. W. Evans & Son, 71 N L R B 1039. Matter of Allis-Chalmers Manu- faetnriny Company, 64 N. L R. B 750; Matter of Consolidation Coal Company, 63 N L It B 169, Matter of Norfolk Southern Bus Corporation, 60 N L R B 630 Matter of The May Department Stores Company, 39 N. L R B 471. MONTGOMERY WARD & COMPANY, INC. 419 visory employees with authority to hire, promote, discharge, disci- pline, or otherwise effect changes in the status of employees, or effec- tively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with Montgomery Ward,& Company, Inc., Kansas City, Missouri, an election by secret ballot shall be con- ducted 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 Seventeenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Sec- tions 203.55 and 203.56, of National Labor Relations Board Rules and Regulations-Series 4, among the employees in the unit found appro- priate 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 em- ployees in the armed forces of the United States who present them- selves in person at the polls, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, to determine whether or not they desire to be represented by Building and Construction Trades Council of Greater Kansas City, A. F. of L., for the purposes of collective bargaining. MR. JOHN M. HousTON took no part in the consideration of the above Decision and Direction of Election.