Montgomery Ward & Co.

In the Matter Of MONTGOMERY WARD & COMPANY and RETAIL CLERKS INTERNATIONAL PROTECTIVE ASSOCIATION (A. F. OF L.) In the Matter of MONTGOMERY WARD & COMPANY and UNITED RETAIL, WHOLESALE AND DEPARTMENT STORE EMPLOYEES OF AMERICA (C. I. 0.) Cases Nos. R-302: and B 302!x, respectively-Decided October 11,194/1 Jurisdiction : general merchandising mail order industry. Investigation and Certification of Representatives : existence of question: re- fusal to accord union recognition ; temporary employees who have been regu- larly employed as regular employees for a specified period held eligible to vote in accordance with stipulation of parties ; election necessary. Unit Appropriate for Collective Bargaining : all employees at each of several stores of the Company excluding divisional directors, store managers, assistant managers, employees in leased departments, floor managers, department heads, personnel directors and their assistants, store detectives or police, private secre- taries of store managers, chief engineers, and buyers. Mr. Brooks Wynne and M11r. John A. Barr, of Chicago, Ill., for the Company. Mr. Donald J. Marquis and Mr. Jack Talbot, of Detroit, Mich., for the Retail Clerks. Mr. Nicholas J. Rothe, 'Mr. Tucker P. Smith, Mr. Joseph Konowe, and Illr. Ben Shein, of Detroit, Mich., for the United. Mr. Sydney S. Asher, Jr., of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE On May 9, 1941, the Retail Clerks International Protective Associa- tion, affiliated with the A. F. of L., herein called the Retail Clerks, :filed with the Regional Director for the Seventh Region (Detroit, Michigan) a petition, and on August 8 and. September 12; 1941, re- spectively, an amended petition and a second amended petition, alleg- ing that a question affecting commerce had arisen concerning the representation of employees of Montgomery Ward & Company, Chi- •cago, Illinois, herein called the Company, and requesting an investiga- tion and certification of representatives pursuant to Section 9 (c) of 36 N. L. R. B., No. 9. 69 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the National Labor Relations Act, 49 Stat. 449, herein called the Act. On August 2, 6, and 11, 1941, respectively, a similar petition, amended petition and second amended petition were filed by United Retail,. Wholesale and Department Store Employees of America, affiliated with the C. I. 0., herein called the United. On August 23, 1941, 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 Di- rector to conduct it and to provide for an appropriate hearing upon due notice, and acting pursuant to Article III, Section 10 (c) (2), of said Rules and Regulations, further ordered that the aforesaid two. cases be consolidated. On September 4, 1941, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company, the Retail Clerks, and the United.' Pursuant to said notices, a hearing was held, on September 12 and 16, 1941, at Detroit, Michigan, before Colonel C. Sawyer, the Trial Examiner duly designated by the Chief Trial Examiner. The Company, the Retail Clerks, and the United were represented by counsel and participated in the hearing. Full oppor- tunity to'be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties.. During the course of the hearing the Trial Examiner made several. rulings on motions and on objections to the admission of evidence.. The Board has reviewed the rulings 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 I. THE BUSINESS OF THE COMPANY Montgomery Ward & Company is an Illinois corporation engaged in,, the sale and distribution of general merchandise at retail through the media of mail-order houses and retail stores. The Company operates nine mail-order houses and 650 retail stores throughout the United, States. . This proceeding involves four stores owned and operated by then Company within the State of Michigan, located respectively at 16500 Grand River Avenue, Detroit, 14455 Gratoit Avenue, Detroit, 13551 'A copy of the notice of hearing was served upon International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America , Local No. 243 , affiliated with the A. F. of L. However, the said organization did not appear at the hearing , nor did it present any proof of membership to the Regional Director. i MONTGOMERY WARD & COMPANY 71 Michigan Avenue, Dearborn, and 400 South Washington Avenue, Royal Oak. Approximately 90 per cent of the merchandise handled by these stores is purchased by the Company from outside the State of Michi- gan. A small proportion of merchandise sold (estimated at a "frac- tion of one per cent") is shipped to customers residing outside the State of Michigan . In addition, catalogue orders are taken at each store and the merchandise is shipped directly to the customer from the warehouse located in Chicago, Illinois. This mail-order business con- stitutes approximately 31/2 per cent of the total volume of business at these four stores.2 II. THE ORGANIZATIONS INVOLVED Retail Clerks International Protective Association is a labor organ- ization affiliated with the American Federation of Labor, and admits to membership employees of the Company. United Retail, Wholesale and Department Store Employees of America is a labor organization affiliated with the Congress of Indus- trial Organizations, and also admits to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION Early in April 1941, the Retail Clerks requested bargaining rights for all four of the stores, by letter addressed to the Company. Within a few days the Company replied by letter, declining recognition. The United likewise requested bargaining rights for all of the stores except the Royal Oak store. This request was not answered by the Com- pany. Both unions submitted proof of substantial membership among the employees of each of the four stores.8 We find that a question has arisen concerning the representation of employees of the Company at its Gratoit, Grand River, Dearborn, and Royal Oak stores. aIt was agreed that the figures given are typical of each of the four stores in question. 8 The unions submitted signed membership cards to the Regional Director and to the Trial Examiner at the hearing, which were checked against the Company 's pay roll. The tabulation of those which bore signatures appearing to be genuine is as follows : Number of Retail clerks U it employees cards n ed cards Gratoit store -------------------------------------------- 399 106 179 Grand River store-------------------------------- ------ 534 46 235 Dearborn store -- ---------------------------------------- 454 43 192 Royal Oak store- ------------ -------------------------- 218 70 38 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 rela- tion 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. V. THE APPROPRIATE UNIT All parties are agreed that the employees in each store should, con- stitute a separate bargaining unit. The Company contends that the unit for each store should contain all employees, excluding only divisional directors,' store managers, assistant managers, and employees in leased departments. Both unions contend that in addition to the divisional directors, store man- agers, assistant managers, and employees in leased departments, there should also be excluded from the units the floor managers, depart- ment heads, personnel directors and their assistants, store detectives, confidential secretaries, and all other executive or supervisory employees. Floor managers are in charge of an entire floor, and have authority over all employees on the floor, including department heads. They have power to hire and discharge employees. Department heads are in charge of a particular department. They have power to recom- mend the hiring and discharging of employees within their depart- ment. The duties of floor managers and department heads are supervisory, and we will therefore exclude them from the appropriate units. The primary function of the personnel director of each store is the hiring and discharging of employees. The assistants work closely with the personnel directors and have access to information relating to personnel. Under the circumstances, we will exclude personnel directors and their assistants from the appropriate units.5 The Company contends that none of the stores have store police on the pay roll, implying, apparently, that the store police are the employees of private detective agencies. The record discloses that 4 Divisional directors supervise all stores within their division . The record does not disclose the location of the divisional director or directors in charge of the four stores in question . Since the supervisory status of a divisional director is superior to that of store managers, and since the Company requested the exclusion of store managers, It Is assumed that it also wishes to exclude divisional directors , if there are any in or near any of the four stores in question. 6Matter of Creamery Package Manufacturing Company (Lake Mills Plant ) and Steel Workers Organizing ConimIttee (C. I. 0.), 34 N . L. R. B., No. 15. MONTGOMERY WARD & COMPANY 73 there. is a group of detectives in the stores known as "will mark shoppers." These men are on the pay roll of a private detective agency. However, there are also store police or detectives on the Company's pay roll, at least one of whom is designated as a "watch- man." The record clearly shows that this man performs the duties of an ordinary detective. We are of the opinion that all store police and detectives, and all employees who perform police or detective work regardless of the designation applied to such employees by the Company, should be excluded from the appropriate units. In the category of confidential secretaries or clerks, the unions seek to exclude the private secretaries of managers. We shall exclude from the appropriate units the secretaries of the store managers.° Each store has a chief engineer, who is in charge of maintenance employees. Although none of the parties have specifically requested their exclusion, we shall, since their functions are supervisory in nature, exclude the chief engineers from the appropriate units. There is also a class of employees known as "buyers" who are assist- ants to department heads. None of the parties have specifically sought to exclude them. We shall, however, in view of their duties, exclude them from the appropriate units. We find that all employees at the Gratoit, Grand River, Dearborn, and Royal Oak stores of the Company, respectively, excluding divi sional directors, store managers, assistant managers, employees in leased departments, floor managers, department heads, personnel directors and their assistants, store detectives or police, private secre- taries of store managers, chief engineers, and buyers, constitute separate units in each store appropriate for the purposes of collective bargaining, and that said units will afford to 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. DETERMINATION OF REPRESENTATIVES We find that the question which has arisen concerning representa- tion of employees of the Company at its Gratoit, Grand River, Dear- born, and Royal Oak stores, can best be resolved by elections by secret ballot. At the hearings, the parties stipulated that eligibility to vote in the elections should be based upon a current pay roll, and that all extra temporary employees who have been regularly employed as extras for a period of at least sixty days immediately preceding the date of our Direction of Elections, should be eligible to vote in the 6 See Matter of E. P. Dutton c6 Co., Inc. and Book and Magazine Guild, Local 18, U. 0. P. W. A. (C. 1. 0.), 33 N. L. R. B., No. 134. 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD elections. We find, accordingly, that employees in the appropriate units who were employed during the pay-roll period immediately preceding the date of our Direction of Elections, including all tem- porary employees who have been regularly employed as extras for a period of at least sixty days immediately preceding the date of our Direction of Elections, subject to such limitations and additions as are set forth in the Direction, shall be eligible to vote in the elections. 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 employees of Montgomery Ward & Company, Chicago, Illinois, at its stores located at 15400 Grand River Avenue, Detroit, Michigan, 14455 Gratoit Avenue, Detroit, Michigan, 13551 Michigan Avenue, Dearborn, Michigan, and 400 South Washington Avenue, Royal Oak, Michigan, within the meaning of Section* 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All employees at each of the said stores of the Company, respectively, excluding divisional directors, store managers, assistant managers, employees in leased departments, floor managers, depart- ment heads, personnel directors and their assistants, store detectives or police, private secretaries of store managers, chief engineers, and buyers, constitute separate units in each of the stores appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the National Labor Relations Act. DIRECTION OF ELECTIONS 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, 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 & Company, Chicago, Illinois, separate elections by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction of Elections, under the direction and supervision of the Regional Direc- tor for the Seventh Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sec- tion 9, of said Rules and Regulations, among all the employees at the MONTGOMERY WARD & COMPANY 75 15400 Grand River Avenue, Detroit, Michigan, 14455 Gratoit Ave- nue, Detroit, Michigan, 13551 Michigan Avenue, Dearborn, Michigan, and 400 South Washington Avenue, Royal Oak, Michigan, stores of the Company, respectively, who were employed during the pay-roll period immediately preceding the date of this Direction of Elections, including extra temporary employees who have been regularly em- ployed as extras *for a period of at least sixty (60) days immediately preceding the date of this Direction of Elections, employees who did not work during such 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 divisional directors, .store managers, assistant managers, employees in leased depart- ments, floor managers, department heads, personnel directors and their assistants, store detectives or police, private secretaries of store managers, chief engineers, buyers, and employees who have since quit or been discharged for cause, to determine whether they desire to be represented for the purposes of collective bargaining by Retail Clerks International Protective Association, affiliated with the A. F. of L., by United Retail, Wholesale and Department Store Employees of America, affiliated with the C. L. 0., or by neither.