Montgomery Ward & Co., Inc.

In the Matter of MONTGOMERY WARD & CO., INCORPORATED and UNITED RETAIL, WHOLESALE AND DEPARTMENT STORE EMPLOYEES OF AMERICA, LOCAL No. 269 Case No. R-3691.Decided May 20,191 Jurisdiction: retail merchandising industry. Investigation and Certification of Representatives: existence of question: re- fusal to accord union recognition until it is established that the union represents a majority of the employees; election necessary. Unit Appropriate for Collective Bargaining : all employees of the Company's Denver, Colorado, retail store and retail warehouse, excluding the manager, group merchandisers, department heads, supervisors, temporary part-time employees, leased-department employees and detectives. Mr. Paul S. Kuelthau, for the Board. Mr. Brooks Wynne, of Chicago, Ill., for the Company. Mr. Fred K. He ff erly, of Denver, Colo., for the Union. Mr. Gerard J. Manacle, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition and amended petitions duly filed by United Retail, Wholesale and Department Store Employees of America, Local No. 269, herein called the Union, alleging that a question affecting com- merce had arisen concerning the representation of employees of Montgomery Ward & Co., Incorporated, Denver, Colorado, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Thomas S. Wilson, Trial Examiner. Said hearing was held at Denver, Colorado, on April 2, 1942. The Company and the Union appeared, participated. and were afforded full opportunity 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 errors and are hereby affirmed.' 1 Subsequent to the hearing, the Company, the Union , and the Board 's attorney entered into a stipulation for the correction of certain errors in the transcript of testimony . The Board hereby orders that the stipulation be made a part of the record and that the transcript be corrected in accordance with the stipulation. 41 N. L. It. B., No. 28. 122 MONTGOMERY WARD' & CO., INC. 123 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, an Illinois corporation with its principal executive office in Chicago, Illinois, is engaged in the distribution of merchandise throughout the United States and many foreign countries through the media of mail-order houses and retail stores,': . In connection -with - such- distribution, the -Company operates 9 mail-order houses and more than 600 rental stores. - This proceeding involves the retail store and retail warehouse of the Com- pany in Denver, Colorado. During the year 1941,'the net sales of the Denver retail store were in excess of $4,500,000, of which $35,955 represented: merchandise sold and shipped to points outside the State of Colorado. During the same period, the Denver retail store re- ceived 90 ' percent of its merchandise from outside the State of Colorado. -- '11. ,THE ORGANIZATION INVOLVED United Retail Wholesale and Department -Store Employees of America, Local No. 269, is a labor organization affiliated with the C. I. 0., admitting to membership employees of the Coriipany. III. THE QUESTION CONCERNING REPRESENTATION From October ' 1939 to June 1941 the Company and' tie ' Union settled "a 'number ` of- employees' grievances. Since the latter' 'date, however, the ' Company has refused to meet with the Union until it is established that 'the Union , represents a majority of the employees in an appropriate bargaining unit. 'A statement of the Regional Director, introduced into ' evidence at the hearing, indicates that the Union represents a substantial number of employees in the unit hereinafter found to be 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 National Labor Relations Act. 2 The report^of the Regional Director states that the Union submitted 131 application- for-membership cards ; that all cards appear to bear genuine signatures; _and that 122 of the cards bear the names of persons appearing on the Company's February 12, 1942, pay ioll. Approximately 240 persons are employed in the unit claimed by the Union to be appropriate. I 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it IV: THE APPROPRIATE' UNIT The Company and the Union agree that employees in the Denver retail store and retail warehouse constitute an appropriate unit, and that the manager,-operating manager, and merchandising manager, should be excluded therefrom. The Union would exclude and the Company include, however, the following employees and groups of employees : - 1. Group merchandisers.3 There are two group merchandisers, each of whom is responsible for, and has direct supervision of, a cer- tain number of sales departments in all matters concerning merchan- dising, displays, and selling. We find that group merchandisers are supervisory employees and, as such, should be excluded from the unit. 2. Department heads,' supervise the work of employees in their respective departments. The same degree of authority is exercised by all department heads and all have power to recommend the hiring or discharging of employees in their departments. We find that de- partment heads are supervisory employees and, as such, should be excluded from the unit. 3. Personnel department employees. The personnel department in- terviews applicants for work, helps to determine the efficiency ratings of employees, calls part-time employees to work, and handles all other matters relating to personnel. The Union does not admit these employees to membership. Under the circumstances, we find that personnel department employees should be excluded from the unit.' 4. Temporary part-time employees. The Company carries on the pay roll as temporary part-time employees those employees who work "one or two days at various times" prior to the pay-roll date. The Union contends that only those part-time employees who work "a good deal over 50°Jo of the year" are regular-part-time employees, and that all other part-time employees are temporary part-time employees. We are of the opinion and find that employees who work regularly in each pay-roll period, if only of ce, are regular part-time employees and should be included in the unit, but that employees not so regularly -employed are temporary part-time employees and, as such, should be excluded fi om the unit. 5. Store detectives are used primarily to guard against shop-lifting on the sales floor, and also perform other police or detective work. We find that they should be excluded from the unit. 6. Marion Williams, Thelma Cathey, Marie Selby, Leona Cleer, and Eva Freeman supervise and are responsible for the work of from 4 a Also referred to in the record as floor supervisors Also referred to in the record as department managers a Cf. Matter of Creamery Package' Manufacturing Company and Steel Workers Organizing Committee, C. I. 0, 34 N. L. R B 108 MONTGOMERY WARD & CO., INC. 125 to 20 employees in various divisions of the departments., They have the power to recommend the hiring . or discharging of employees. We find that these 5 employees are supervisory employees and, as such, should be excluded from the unit. 7. Victor Shellinger is designated in the record as display manager, but it does not appear that he has any supervisory duties. We find that he should be included in the unit. There are also a manufacturer's representative, Herrod Bates, and some employees -of departments which are leased by the Company to other persons, whose exclusion has, not been specifically requested. Bates operates a counter exhibiting Dr. Scholl's products, but it does not appear 'that he exercises any supervisory functions. The Com= pany pays only half his salary, the Dr. Scholl Company paying the other half. We shall include him in the unit. As to the leased- department employees, they are paid by and are under the supervision of the persons leasing the departments. We shall exclude them from the unit. We find that all employees of the Company's Denver retail store and retail warehouse, excluding the manager, operating manager, merchandising manager, group merchandisers, department heads, supervisors, temporary part-time employees, personnel-department employees, leased-department employees, and detectives, constitute a unit appropriate for the purposes of collective 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 an election by secret ballot among the em- ployees in the appropriate unit 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 ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Re- lations Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series-2, 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 S, Co., Incorporated, Denver, Colorado, an election by secret ballot shall be conducted as early as possible, but not later than thirty 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Twenty-second Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Reg- ulations, among the employees in the unit found appropriate in Sec- tion IV, above, who were employed during the pay-roll period im- mediately preceding the date of this Direction, including any such employees who did not work during said pay-roll period because they were ill or on vacation or in the active military service or training of the United States, or temporarily laid off, but excluding any who have since quit or been discharged for cause, to determine whether or not they desire to be represented for the purposes of collective bargaining by United Retail, Wholesale and Department Store Employees of America, Local No. 269.