Montgomery Ward & Co., Inc.

MONTGOMERY WARD & CO., INCORPORATED 135 Montgomery Ward & Co., Incorporated and Retail Clerks Union, Local 1167, RCIA, AFL-CIO, Petitioner. Case No. 21-RC-5341. March 11, 1959 DECISION AND DIRECTION On July 23, 1958, Retail Clerks Union, Local 1167, RCIA, AFL- 'CIO, filed with the Regional Director for the Twenty-first Region (Los Angeles, California) a petition pursuant to Section 9(c) of the Act, involving the representation of certain employees of Mont- gomery Ward & Co., Incorporated. On July 31, 1958, the Petitioner and the Employer entered into a "Stipulation for Certification Upon Consent Election," which was approved by the Regional Director on August 4, 1958. Pursuant to the stipulation, an election by secret ballot was con- ducted on August 13, 1958, under the direction and supervision of the Regional Director, among all the employees in the agreed appropriate unit. The tally shows that there were approximately .64 eligible voters, and that there were 58 ballots cast, of which 29 were for the Petitioner, 28 against the Petitioner, and 1 was chal- lenged ; there were no void ballots. The challenged ballot being sufficient to affect the results of the election, the Regional Director investigated the challenge and on November 13, 1958, issued and duly served upon the parties his "Report on Challenged Ballot," in which he recommended that the challenge be overruled and the ballot be counted. The Petitioner filed timely exceptions to this report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Rodgers, Bean, and Fanning]. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the represen- tation of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. The parties agreed, and we find, that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All employees of the Employer's Riverside, California, retail store, excluding the manager, assistant managers, guards, professional employees, and supervisors as defined in the Act. 123 NLRB No. 17. 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The exceptions : The Petitioner excepted to the Regional Director's finding that Vernon Craig (whose ballot was challenged) was not a supervisor. However, the Regional Director's report shows that the instruc- tions relayed by Craig to other employees were either routine or clerical in nature and did not require the exercise of independent judgment or responsible direction. Moreover, at no time did Craig, as a management trainee, possess the power to take, or make effec- tive recommendations as to, personnel action. In these circumstances we adopt the Regional Director's finding that Craig was not a supervisor. The Petitioner also excepted to the Regional Director's finding that a unit including Craig was agreed upon by the parties as appropriate and should be adopted by the Board. However, the Regional Director's report shows that the Petitioner had agreed to include in the unit all employees at the Employer's Riverside store, except for classifications required by the Act to be excluded. Craig was an employee at the Riverside store and did not fall into any excluded classification. Although Craig had interests as a management trainee which were different from those of the rank- and-file employees included in the unit, and although the cases dis- cussed in the Petitioner's brief show that the Board might have excluded Craig for this reason if it had been called on to determine the appropriate unit, the Petitioner here has voluntarily agreed with the Employer that the appropriate unit included all employees at the Riverside store except for supervisors and other statutory exceptions. We cannot agree with the Petitioner's argument that it should now be permitted to disregard its previous agreement as to the appropriate unit.,- Accordingly, we adopt the Regional Director's finding that Craig is included in the agreed appropriate unit, and that his ballot should be opened and counted. In view of the foregoing, we shall direct that Craig's ballot be opened and counted. [The Board directed that the Regional Director for the Twenty- first Region shall, within 10 days from the date of this Direction, open and count the ballot of Vernon Craig, and serve upon the parties a supplemental tally of ballots.] 1 Allis-Chalmers Manufacturing Co., 117 NLRB 744. Standard Steel Corporation and Engineers and Architects Asso- ciation, Petitioner. Case No. 921-RC-5502. March 11, 1959 DECISION AND CERTIFICATION OF RESULTS OF ELECTION On December 19, 1958, pursuant to a stipulation for certification upon consent election, an election was conducted under the direction 123 NLRB No. 25.