Montgomery Ward & Co.

256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It having been found that the Respondent has failed and refused to bargain collec- tively with the affiliated Council as the exclusive representative of its employees in the appropriate unit at the Fenway store, it will therefore be recommended that the Respondent, upon request, bargain collectively with the affiliated Council as the rep- resentative of such ',employees, with respect to their rates of pay, wages , hours of employment, and other conditions of employment and, if an agreement is reached, embody its terms in a signed agreement. Since the unfair labor practices found to have been committed by the Respondent go to the very heart of the Act and indicate an intent to interfere generally with the rights of the employees guaranteed by the Act, the preventative purposes of the Act will be thwarted unless the order is coextensive with the threat . Therefore, in order to make more effective the interdependent guarantees of Section 7 and to prevent a recurrence of the unfair labor practices which burden and obstruct commerce , it will be recommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the above findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Sears Roebuck Employees' Council, Local 1635 , Retail Clerks International Association, AFL (the affiliated Council), and Sears Roebuck Employees' Council (unaffiliated ) (the unaffiliated Council ), and its Local No. 1 are each labor organiza- tions within the meaning of Section 2 (5) of the Act. 2. All selling and nonselling employees employed at the Respondent's Fenway store excluding group office personnel , executives, personnel department employees, lease department employees, cafeteria personnel, service station employees , drivers and helpers , guards, professionals , and 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. 3. Sears Roebuck Employees' Council, Local 1635, Retail Clerks International Association, AFL, has been at all times since January 21, 1953, and now is, the exclusive representative of all the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By failing and refusing to bargain collectively on January 22, 1953, and at all times thereafter, as found above, with Sears Roebuck Employees' Council, Local 1635 , Retail Clerks International Association , AFL, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) (5) of the Act. 5. By dominating and interfering with the formation and administration , by con- tributing financial and other support to, and by recognizing and dealing with the unaffiliated Council, as found above , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) (2) of the Act. 6. By interfering with, restraining, and coercing its employees, as found above, in the exercise of the rights guaranteed to them by Section 7 of the Act , the Respondent has 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 com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] MONTGOMERY WARD & Co. and INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, WAREHOUSE, MAIL ORDER AND DISTRIBUTION WORKERS' LOCAL No. 838, AFL, PETITIONER. Cases Nos. 17-RC-1752 and 17-RC-1788. October 5, 1954 Decision and Direction of Elections Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before William J. 110 NLRB No. 29. MONTGOMERY WARD & CO. 257 Cassidy, 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 these cases, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain employees of the Employer.:' 3. Questions affecting commerce exist concerning the representa- tion of employees of the Employer within the meaning of Section 9, (c) (1) and Section 2 (6) and (7) of the Act. 4. The appropriate units : (a) Retail store (Case No. 17-RC-1788) In its petition, the Petitioner, hereinafter referred to as the Team- sters, sought a unit of all employees of the Employer's Kansas City, Missouri, retail store, excluding employees covered by contracts with other labor organizations, guards, professional employees, and super- visors. However, the Teamsters stated at the hearing that it would not object if the Board included in the unit any employees covered by contracts with other labor organizations. The BTC and the Carpenters would exclude the carpenter, whom they previously rep- resented on a separate basis. The Employer contends that the car- penter should be included in the overall unit. The Retail clerks did not state a position regarding the unit placement of the carpenters. The parties are also in disagreement as to the placement of regular part-time and temporary employees. As to the carpenter, following a Board-directed election,2 the BTC was certified in 1947 as representative of a unit consisting of all car- penters and painters at the Employer's retail store, including furni- ture finishers, extra and apprentice carpenters, and extra painters. I Retail Clerks , International Association , Local No. 782, AFL, herein called Retail Clerks, was permitted to intervene in Case No . 17-RC-1788 on the basis of a proper show- ing of interest International Union of Operating Engineers , Firemen and Oilers , Local 6 and 6-A, AFL, herein called Operating Engineers , was permitted to intervene in Case No 17-RC-1752 on the basis of a prior Board certification and recent representation of the Employer 's mail-order house engineers and firemen in a separate unit Brotherhood of Painters, Decorators and Paperhangers of America, District Council No 3, AFL, inter- vened at the hearing in both cases merely to disclaim any interest in representing the Em- ployer's painters and furniture finishers as a separate unit . Building and Construction Trades Council of Kansas City and Metropolitan Area, AFL, herein called BTC, and its affiliate, United Brotherhood of Carpenters and Joiners of America , District Council of Kansas City and Vicinity, AFL, herein called Carpenters, were permitted to intervene in both cases on the basis of prior Board certifications of BTC and their recent representa- tion of certain employees of the Employer's retail store and mail -order house The Employer denies that BTC and the Carpenters are labor organizations. Among other functions , both of these unions act as bargaining agents in collective-bargaining nego- tiations for their affiliated local unions We find , therefore , that both unions are labor organizations within the meaning of Section 2 (5) of the Act Metallic Building Com- pany, 98 NLRB 386 at 387, footnote 3, and 395 ; enfd 204 F. 2d 826 (C. A 5), cert. denied 347 U S 911 2 Montgomery Ward & Company, Incorporated, 73 NLRB 416 338207-55-vol 110-18 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Employer and BTC thereafter engaged in bargaining negotia- tions each year resulting in oral agreements with respect to these employees, but never executed a written contract. At the time of the hearing, only 1 carpenter and 2 furniture finishers, of the above cate- gories, remained employed at the retail store. The BTC and Car- penters seek to exclude the one carpenter, but not the furniture finishers.a The oral bargaining history for the carpenter clearly does not warrant his exclusion from the unit and, as a one-man unit is not appropriate for the purposes of collective bargaining,4 we shall not direct a separate election for the one carpenter but shall include him in the overall unit. The Teamsters and the Employer would include regular part-time employees in the unit, whereas the Retail Clerks would exclude any such employees working less than 9 hours per week. In accord with our usual practice we shall include all regular part-time employees in the unit and shall permit them to vote in the election.5 The Teamsters and the Retail Clerks would exclude temporary employees from the unit. The Employer contends that they should be included as they enjoy the same facilities, receive some of the same benefits, and perform work similar to that performed by the full-time employees. These employees are hired for only a specified time of short duration during a peak selling period. We do not believe that they have a sufficient community of interest with the other employees to warrant their inclusion. Accordingly, we shall exclude them from the unit. We find that all employees of the Employer's Kansas City, Missouri, retail store, including the carpenter and regular part-time employees, but excluding temporary employees, guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9 (b) of the Act. (b) Mail-order house (Case No. 17-RC-1752) The Teamsters requests an overall unit of all employees of the Employer's Kansas City, Missouri, mail-order house, with the usual exclusions. As with the retail store, the Teamsters stated at the hear- ing that it would not object if the Board included in the unit any employees covered by contracts with other unions. The Operating Engineers seeks a separate unit of engineers and firemen and the BTC and the Carpenters jointly seek the exclusion of carpenters and millwrights. The Employer contends that only an overall unit is appropriate. The parties are also in disagreement concerning the placement of temporary employees. 3 The furniture finishers are members of the Painters Union which , as already men- tioned , has disclaimed any interest in their separate representation ' General Textile Mills, Inc , 109 NLRB 263 a Crown Drug Company, 108 NLRB 1126 MONTGOMERY WARD & CO. 259 Engineers and firemen: In 1943, following a Board-directed elec- tion,6 the 'Operating Engineers was certified for a unit of engineers and firemen. The last written contract between the Employer and the Operating Engineers expired in 1952. An oral agreement was made for the year 1953. The unit which has been represented by the Operating Engineers consists of approximately 4 firemen and 4 engi- neers who work in the boilerroom. As these employees are supervised by a licensed engineer, they are not required to possess licenses. All, however, except one engineer and one fireman have their respective licenses. Some transfers have been made to and from this unit since 1943, primarily as a result of decreased boilerroom activity during the summer months. We find that the engineers and firemen constitute a functionally distinct and coherent group who may constitute a separate appropri- ate unit if they so desire. They may also be included in an overall unit. Carpenters and millwrights : After a Board-directed election' in 1943, the BTC was certified as representative for a unit of carpenters, millwrights, electricians, plumbers, painters, cabinetmakers, and glaziers. The Employer and the BTC have engaged in collective- bargaining negotiations each year concerning these employees, with the Carpenters joining in the negotiations in behalf of the carpenters and millwrights, and have made oral agreements but have never executed a written contract. The BTC stated at the hearing that it did not intervene in behalf of the electricians, plumbers, and painters. The BTC and the Carpenters did intervene, however, for the purpose of seeking the exclusion of the carpenters and the mill- wrights from the overall unit. The carpenters perform carpentry work necessary to construct or maintain structural woodwork and equipment on company property, including doors and floors, using carpenters' tools and power-driven woodworking machines. The two millwrights 8 inspect, adjust, and repair the Employer's pneumatic tube conveying system and perform installation or maintenance work on conveyors or related mechanical equipment. The Employer does not have an apprenticeship program for these employees, its payroll does not list a journeyman classification, and these employees are required to perform work outside of their classifi- cations. The Employer, however, does have an on-the-job training program for these employees and all of them, except one employee who was hired at the top job rate as an experienced carpenter, have completed this training program. The Employer's payroll lists vari- 6 Montgomery Ward & Company, Incorporated, 53 NLRB 1300 7 Montgomery Ward & Company , Incorporated, 53 NLRB 1300 8 The Employer employs two employees , Heidbrink and Gerguson , whom it now classifies as mainttenance mechanics although they are performing millwright duties 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ous pay grade levels and all the carpenters and millwrights are receiv- ing the top job rate. Furthermore, the majority of the work of these employees is in their job classifications. The collective-bargaining history described above provides insuf- ficient basis for the exclusion of the carpenters and millwrights requested by the BTC and Carpenters Union. We believe that the carpenters and nillwrights are craftsmen who may, if they so desire, constitute a separate appropriate unit.9 These employees may also be included in an overall unit requested by the Teamsters. Temporary employees: Unlike the retail store's temporary em- ployees it appears that the mail-order house temporary employees may have a substantial likelihood of permanent employment. However,, the record is insufficient upon which to determine the placement of these employees and, accordingly, we shall permit them to vote sub- ject to challenge. In the circumstances of this case, we shall direct elections in the following voting groups: (1) All the Employer's engineers and firemen employed at its Kan- sas City, Missouri, mail-order house, excluding supervisors as defined in the Act and all other employees. (2) All the Employer's carpenters and millwrights employed at its Kansas City, Missouri, mail-order house, excluding supervisors as defined in the Act and all other employees. (3) All the employees of the Employer's Kansas City, Missouri, mail-order house, including part-time employees but excluding guards, professional employees, supervisors as defined in the Act, and em- ployees in voting groups (1) and (2). If a majority of the employees in voting groups (1) and (2) select the labor organization seeking to represent them separately those employees will be taken to have indicated their desire to constitute a separate appropriate unit and the Regional Director conducting the elections is instructed to issue a certification of representatives to the labor organization seeking and selected in each group for such unit which the Board, in such circumstances, finds to be appropriate for purposes of collective bargaining. If a majority of the employees in voting groups (1) and (2) vote for the labor organizations seeking to represent them separately and if a majority of the employees in voting group (3) vote for the Teamsters, the Regional Director is instructed to issue a certification of representatives to the Teamsters for a separate unit of employees described in that voting group which U As no severance problem is involved concerning this group of employees , we find it unnecessary to pass upon the Employer 's contentions relating to the propriety of the BTC and Carpenters representing these employees Although the BTC and Carpenters did not specifically request a separate election among the carpenters and millwrights they have submitted an adequate showing of interest and we shall provide for such election. THE HEATING, PIPING & AIR CONDITIONING CONTRACTORS 261 the Board, under the circumstances, finds appropriate for the pur- poses of collective bargaining. On the other hand, if a majority of the employees in either voting group (1) or (2), or both, do not vote for the labor organization which is seeking to represent them in a separate unit, the employees in such group or groups will be included in the overall unit and their votes pooled with those of voting group (3),10 and the Regional Director conducting the elections is instructed to issue a certification ,of representatives to the labor organization selected by a majority of the employees in the pooled group which the Board, in such cir- cumstances, finds to be a unit appropriate for the purposes of collective bargaining. [Text of Direction of Elections omitted from publication.] 10 If the votes are pooled , they are to be tallied in the following manner : The votes for the union seeking the separate unit shall be counted as valid votes , but neither for nor against the union seeking to represent the more comprehensive unit; all other votes are to be accorded their face value , whether for representation by the union seeking the com- prehensive group or for no union. THE HEATING, PIPING & AIR CONDITIONING CONTRACTORS, CINCINNATI ASSOCIATION and JOURNEYMEN PIPEFITTERS LOCAL No. 392, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL,1 PETITIONER 'CINCINNATI MASTER PLUMBERS ASSOCIATION and PLUMBERS AND GAS FITTERS LOCAL UNION No. 59, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL,2 PETITIONER. Cases Nos. 9-RC-2218 and 9-RC-2259. October 6, 1954 Decision and Direction of Elections Upon petitions duly filed under Section 9 (c) of the National -Labor Relations Act, the above-entitled cases were consolidated by order of the Regional Director for the Ninth Region and a hearing on the consolidated cases was held before William G. Wilkerson, hearing officer .3 The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed' The hearing officer i Herein called the Pipefitters. z 1 lerein called the Plumbers. As the record and briefs adequately present the issues and positions of the parties, we deny the Plumbers' request for oral argument. 4 The Plumbers , Sheet Metal Workers International Association, Local 141, and the International Hod Carriers , Building and Common Laborers Union of America, Local 265, AFL, none of whom claimed to represent directly any of the pipefitters involved , were per- mitted by the hearing officer to intervene specially in Case No . 9-RC-2218, on the basis of their assertion that the certification of the Pipefitters would adversely affect their juris- dictional interests with respect to the crafts they represent . The Pipefitters , who do not seek to represent the plumbers involved in Case No. 9-RC-2259, were likewise permitted 110 NLRB No. 34.