Montgomery Ward & Co.

In the Matter of MONTGOMERY WARD & Co. and UNITED MAIL ORDER, WAREHOUSE AND RETAIL EMPLOYEES UNION, LOCAL 20, AFFILIATED WITH THE C. I. O. Case No. R-1878.-Decided July 11, 1940 Jurisdiction : general merchandising mail-order industry. Investigation and Certification of Representatives : existence of question : dis-' pute as to appropriate unit; election necessary. Unit Appropriate for Collective Bargaining Employees at one of several mail-order warehouses in same area held to be appropriate where union organization has not extended beyond such unit although all employees in said area are eligible to membership in the union and Company requested a larger unit. Mr. John A. Barr, Mr. Walker Smith, and Mr. William Powell, of Chicago, Ill., for the Company. Mr. Francis Heisler and Mr. Stanley F. Evans, of Chicago, Ill., for the Union. Mr. Eugene R. Thorrens, of counsel to the Board., DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CA SE On April 1, 1940, United Mail Order, Warehouse and Retail Em- ployees Union, Local 20, affiliated with the C. I. 0., herein called the Union, filed with the Regional Director for the Thirteenth Region (Chicago, Illinois) a petition alleging that a question affecting com- merce had arisen concerning the representation of employees of Montgomery Ward & Co., Chicago, Illinois, herein called the Com- pany, and requesting an investigation and certification of representa- tives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On May 8, 1940, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and' Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, as amended, ordered an investigation and authorized the Regional Director to conduct it and to, provide for an appropriate hearing upon due notice. 25 N. L. R. B., No. 42. 318 MONTGOMERY WARD & CO. 319 On May 13, 1940, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and the Union. On May 20, 1940, at the request of the Company, the Regional Direc- tor issued an order and notice of postponement. Pursuant thereto, a hearing was held on June 6 and 7, 1940, at Chicago, Illinois, before Robert R. Rissman, the Trial Examiner duly designated by the Board. The Company and the Union were represented by counsel, participated in the hearing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. During the course of the hearing the Trial Examiner made several rulings on motions and on objec- tions to the admission of evidence. The Board has reviewed the rul- ings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Montgomery Ward & Co., an Illinois corporation having its prin- cipal executive offices in Chicago, Illinois, is engaged in the purchase, sale, and distribution of general merchandise," through the media of snail-order houses, catalog-order offices, and retail stores. In con- nection with such distribution the Company operates- 9 mail-order houses, 4 factories, and over 600 retail stores scattered throughout the United-States. This proceeding is concerned solely with employ- ees of the Schwiiul Warehouse at Chicago, Illinois, which is a part of an organization known as the Chicago Mail Order House. The Chicago Mail Order House consists of the Company's principal ad- ministration building at 618 West Chicago Avenue and three branch buildings, including the Schwinn Warehouse, located in various sec- tions of Chicago at each of which the Company maintains merchandise stocks for distribution' to its retail stores and mail-order customers .2 The Schwinn Warehouse, which is thus a branch of the Chicago Mail Order House, serves principally as a retail pool where merchandise is received from factories and vendors and segregated for distribution to the Company's retail stores in the vicinity. In addition to the Chicago Mail Order House proper, the Company maintains facilities in four other buildings in Chicago for clerical, accounting, and administrative ' The merchandise handled by the Company includes clothing , dry goods , furniture, home furnishings , household equipment , plumbing, heating, and farm equipment and supplies, building materials , jewelry , musical instruments , automobile accessories , electrical supplies, books, stationery , drugs, cosmetics , sporting goods, luggage, tools , hardware, and other goods. 2 The other two branches are known as the Phingsten Warehouse and the North Pier Warehouse. 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purposes, and for the warehousing of samples, and overflow merchan- dise from one of its retail stores. The Company also operates several catalog-order offices in the Chicago area. At these offices no merchan- dise is carried on hand; customers select merchandise from Company catalogs and place orders f or future delivery with order takers sta- tioned there. In the Schwinn Warehouse building the Company maintains a catalog-order office which is operated independently of other Schwinn Warehouse activities. Orders placed at this office are filled by the Company at its Chicago Avenue main building. During the fiscal year ending January 31, 1940, the Company pur- chased merchandise having a total value of approximately $358,- 943,630 and its sales netted approximately $463,832,750. The merchandise distributed through the Schwinn Warehouse is received from more than one thousand vendors, the majority of whom are located outside the State. of Illinois, and the greater part of such merchandise is shipped from the Schwinn Warehouse outside Illinois. Such shipments are sent, apart from mail-order customers, to 374 of the Company's retail stores located in 23 States. H. THE ORGANIZATION INVOLVED United Mail Order, Warehouse and Retail Employees Union, Local 20, affiliated with the C. I. 0., is,a labor organization chartered by the United Retail and Wholesale Employees of America, affiliated with the Congress of Industrial Organizations. The Union admits to membership employees of the Company in the Chicago area. III. THE QUESTION CONCERNING REPRESENTATION Shortly before the filing of the petition, the Union notified the Company that it represented a majority of the Company's employees at the Schwinn Warehouse and requested recognition as bargaining representative. The Company questioned whether the Union repre- sented a majority of such employees and refused to recognize the Union until the Board determined the appropriate unit for collective bargaining purposes. We find that a question has arisen concerning the representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. MONTGOMERY WARD & CO. 321 V. TIIE APPROPRIATE UNIT In its petition the Union alleged that employees at the Schwinn Warehouse of the Company, except "supervisors and foremen, and officers who exercise the right to hire and discharge," constitute an appropriate unit. The Company asserted, at the hearing that a unit comprising all of its employees in the Chicago area, or, as an alternative, those within the Chicago Mail Order House proper, would be appropriate. The Union began to organize the Company's employees in the Chicago area about December 1939. As the result of its drive, it set up a separate division of the Company's employees at the Schwinn Warehouse, where approximately 300 non-supervisory employees are employed. These employees have their own officers, bargaining com- mittee, and separate membership meetings. The Union has not completed organization of the Company's employees located elsewhere in the Chicago area and so far as appears, no other labor organ- ization has organized any of them. Although membership in the Union is not restricted to Schwinn Warehouse employees, the Union plans to organize other employees in separate divisions, according to the place of their employment. In support of the Company's request for a larger unit, at the hearing the personnel manager of the Chicago Mail Order House, S. M. Boyden, and Lawrence Jones, the Company's general mail- order personnel manager, described the nature of the Company's op- erations in the Chicago area. In general, the Company maintains a stock of merchandise at its main location in the Chicago area, 618 West Chicago Avenue, to service mail-order customers and its retail stores. Owing to lack of space there, the Company utilizes, among other places, the Schwinn Warehouse, located about 4 or 5 miles from the Chicago Avenue building, to accommodate its overflow mer- chandise. The Schwinn Warehouse, although also engaged in servic- ing mail-order customers, operates as a retail pool, where merchandise is segregated for distribution to the Company's retail stores. The Company engages in substantially the same type of activities at the Schwinn Warehouse and at 618 West Chicago Avenue, namely the servicing of mail-order customers and retail stores, employs stockmen, order fillers, supply boys, checkers, packers, typists, comptometer operators, and others at both locations, and transfers employees back and forth between the Chicago Avenue building and the Schwinn Warehouse. All employees of the Chicago Mail Order House are hired at the Chicago Avenue employment and personnel office. Within the Chicago Mail Order House, which has a pay roll con- sisting of approximately 5,380 employees, the Company maintains a 322 DECISIONS, OF -NATIONAL LABOR RELATIONS BOARD uniform personnel policy. Thus, the same working conditions obtain throughout the Chicago Mail Order House, and, the Company con- tends, it should be subject to unified collective bargaining negoti- ations. Under all the circumstances, we are of the opinion that the em- ployees involved herein could function effectively either together with the remaining employees of the Chicago Mail Order House, or as a separate unit for the purposes of collective bargaining. However, although one unit composed of the employees of the Chicago Mail Order House might reasonably be considered appropriate for the purposes of collective bargaining, the extent to which union organization has proceeded in the Chicago Mail Order House pre- cludes such a finding. Since organization of the Company's employees in the Chicago area has extended to date only to the employees of the Schwinn Warehouse unit, and since the Union is the only labor organization existing among the Company's Chicago employees, we find the unit requested by the Union to be appropriate.3 To find otherwise would be to deny collective bargaining to the Schwinn Warehouse employees until all the employees of the Company constituting the Chicago Mail Order House had been organized. - There -remains for consideration the question of whether certain specific groups of employees within the Schwinn Warehouse should be included in the unit. The Union desires that three fringe groups, consisting of approx- imately 14 head stockmen, 4 cafeteria employees, and 3 catalog-office employees, all of whom work at the Schwinn Warehouse, be included in the appropriate unit. At the hearing the Company took no position with respect to the inclusion or exclusion of the three fringe groups. The head stockmen are paid on an hourly basis like ordinary employees, but have charge of the maintenance of a particular line of merchandise, are assisted in their work by one or two stockmen or assistant stockmen, and exercise minor supervisory functions. Their position is analogous to that of six sub-supervisors, a merchandise transfer supervisor, an engineer, and a head timekeeper at the Schwinn Warehouse who are also paid on an hourly basis, have other employees under them, and exercise minor supervisory functions. The Union did not specifically request the inclusion or exclusion of the latter group, but in its petition asks for the exclusion of super- visory employees generally. Under these circumstances since there 3See, for example , Matter of American Tobacco Co, Inc. and Committee for Industrial Organization, Local No. 472, 9 N L. R. B. 579 ( one of six plants ) ; Matter of New England Spun Silk Corp. and Federal Union of Textile Workers, 11 N L R B 852 (one of two mills) Matter of The Texas Co and Oil Workers Int Union Local #280, 11 N L R B 925 (one of ten districts in one of five divisions of company 's operations) MONTGOMERY WARD & CO. 323 is, no material distinction between the two groups of minor super- visory employees, we shall exclude all of them from the unit.4 The three catalog-office employees, including the manager of such office, take orders which are filled at the Company's Chicago Avenue building. Although the catalog-order office is operated independ- ently of other Schwinn Warehouse activities, since the order takers are employees of the Company who work in the Schwinn Warehouse .building and are thus eligible to membership and participation in that division of the Union, we shall include them in the appropriate unit. The four cafeteria workers referred to above are attached to the pay roll of the main cafeteria at the Company's main building on Chicago Avenue, and a substantial portion of their working time is spent there. Food is prepared at the Chicago Avenue location, transported by truck to the Schwinn Warehouse, and served there to Company employees by the four cafeteria workers. After lunch, -they return with the dishes to the main cafeteria quarters, where the dishes are washed. Since the four cafeteria workers are not on the Schwinn pay roll and are eligible to membership and participation in the Union at the Chicago Avenue building, we shall exclude them from the appropriate unit. We find that all employees of the Company at its Schwinn Ware- house, Chicago, Illinois, including catalog-office employees but ex- cluding supervisory employees on its time-card pay roll, cafeteria em- ployees, ledger and supervisory pay-roll employees, constitute an appropriate unit, and that said unit will insure to the employees of the Company the, full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES At the hearing there was introduced in evidence a statement of the Board's Regional Director concerning the claim of representation made by the Union. This statement reveals that the Company's pay roll of May 16, 1940, includes at least 142 employees at the Schwinn Warehouse within the appropriate unit whose names appear on signed authorization and membership cards.' ,We find that the question, of i In accordance with the Union's request and our customary practice, we shall exclude employees on the Company's ledger or executive pay roll and employees on its supervisory pay roll at the Schwinn Warehouse from the appropriate unit At the time of the hearing the Company employed approximately 10 or 15 Schwinn Warehouse employees temporarily at its Chicago Avenue building They are a part of the appropriate unit and shall be eligible to vote in the election hereinafter directed 5 All the cards submitted by the Union to the Regional Director, except 13 which are undated, bear dates in the period beginning December 1939 and extending to April 1940, inclusive. The Company objected to the introduction of the statement on the ground that it was hearsay. It was received, however, as part of the Regional Dnector's investi- gation of the substantiality of the Union's claim and not as a basis for certification upon the record. 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representation which has arisen can best be resolved in an election by secret ballot. We shall accordingly direct that such election be held. All persons in the appropriate unit employed during the pay-roll period immediately preceding the date of the Direction of Election herein, including employees who did not work during such pay-roll period because they were ill or on vacation, and employees who were then or have since been temporarily laid off, but excluding those who shall have since quit or been discharged for cause, shall be eligible to vote. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of Schwinn Warehouse employees of Montgomery Ward & Co., Chicago, Illinois, within the meaning of Section 9 (c) and Sec- tion 2 (6) and (7) of the National Labor Relations Act. 2. All employees of the Company at its Schwinn Warehouse, Chi- cago, Illinois, including catalog-office employees, but excluding sup- ervisory employees on its time-card pay roll, cafeteria employees, ledger and supervisory pay-roll employees, constitute a unit appro- priate for the purposes of collective bargaining; within the meaning of Section 9 (b) of the National Labor Relations Act. 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 Rela- tions Act, 49 Stat. 449, 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 authorized by the Board to ascertain representatives for the purposes of collective bargaining with Montgomery Ward ,-Q, Co., Chicago, Illinois, an election by secret ballot shall be conducted as early as possible but not later than thirty (30) days from the date of this Direction of Election, under the direc- tion and supervision of the Regional Director for the Thirteenth Region, acting in this matter as agent for the National Labor Rela- tions Board and subject to Article III, Section 9, of said Rules and Regulations, among all employees of the Company at its Schwinn Warehouse', including catalog-office employees, who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during such pay-roll MONTGOMERY WARD & CO. 325 period because they were ill or on vacation, and employees who were then or shall have since been temporarily laid off, but excluding supervisory employees on its time-card pay roll, cafeteria employees, ledger, and supervisory pay-roll employees, and excluding employees who shall have since quit or been discharged for cause, to determine whether or not said employees desire to be represented by United Mail Order, Warehouse and Retail Employees Union, Local No. 20, affiliated with the C. I. 0., for the purposes of collective bargaining. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Direction of Election. 283036-42-vol. 25-22