Montgomery Ward & Co.

In the Matter Of MONTGOMERY -WARD & COMPANY and, WAREHOUSE- MEN'S UNION, LOCAL No. 206, CHARTERED BY THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CIIAUFFIURS, STABLEMEN AND HELPERS OF AMERICA, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR In the Matter Of MONTGOMERY WARD & COMPANY and RETAIL CLERK'S INTERNATIONAL PROTECTIVE ASSOCIATION, LOCAL No. 1257, AFFILIATED -WITH THE AMERICAN FEDERATION OF -LABOR Cases Nos. C-1905 and C-1906.-Decided November 29, 1941 Jurisdiction : general merchandising mail order industry. Unfair Labor Practices Interference, Restraint, and Coercwoe. anti-union statements; inducing striking employees to desert the unions and to abandon their concerted activity. Collective Bargaining: majority of unions established by: prior certification of one union and membership in the other union-failure to negotiate in good faith : refusal at outset of negotiations to agree to embody understandings reached in a signed contract, refusal to advance counterproposals; taking the negative attitude that it had no affirmative duty to do anything and that the initiative continues to lie with the unions throughout the bargaining proc- ess; failure to fulfill its obligation "to discuss freely and fully then- (the parties') respective claims and demands and, when these are opposed, to justify them on reason" by simply relying on existing practice as a reason for not agreeing to union's pi oposal ; n efusal to embody prohibition against union discrimination in contracts which constituted a "refusal to do what reasonable and fair-minded men are ordinarily willing to do", deliberate postponing information concerning when a further conference could take place although aware of union's desire for an early reply; violating obligation to deal with the unions as exclusive representatives by soliciting individual striking employees to return to work Remedial Orders: employer ordered to bargain collectively with the unions and to embody understanding reached in signed agreements ; since strike is found to have been caused and prolonged by employer's refusal to bargain, em- ployer ordered to reinstate striking employees upon application. Units Appropriate for Collective Bargaining : (1) all merchandise checkers in the shipping department; all receiving clerks in the receiving department, all employees on the freight elevators ; all sorters, completers, and packers, but not billers in the packing and billing department; all employees of the package-opening department except authenticate s, all employees of the cen- tral-repair unit except those engaged in office work; all employees in the jewelry-repair unit engaged in handling merchandise, except watchmakers; all employees in the merchandise division except timekeepers and employees engaged in taking orders ; all employees in the supply and multigraph de- partment who fill in and stock supplies ; all employees who handle mer- chandise in the opeiatnng auditing, stock-control, and catalog-service departments; all posters, and all employees at the warehouse, excluding supervnsoy employees; and (2) all retail clerks engaged in handling or 37 N L. It B., No 16. 100 MONTGOMERY WARD & COMPANY 101 selling merchandise, including display helpers, tire mounters, stock men, order fillers, markers, messengers, outside salesmen, and floor cashiers, exclusive of supervisory employees Mr. Patrick H. Walker, for the Board. Mr. Stuart S. Ball, of Evanston, Ill., for the respondent. Mr. James Landye, of Portland, Oreg., for the Unions. Mr. William T. Little, of counsel to the Board. DECISION AND ORDER STATEMENT OF TIIE CASE .Upon charges duly filed by Warehousemen's Union, Local No. 206, chartered by International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, affiliated with the American Federation of Labor, herein called the Warehousemen, and Retail Clerks' International Protective Association, Local No. '1257,. affil- iated with the American Federation of Labor, herein called the Re- tail Clerks,' and collectively called the Unions, the National Labor Relations Board, herein called the Board, by the Regional Director for the Nineteenth Region (Seattle, Washington), issued a consoli- dated complaint 2 dated March 31, 1941, against Montgomery Ward Company, Portland, Oregon, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. Copies of the com- plaint, accompanied by notice of hearing, were duly served upon the respondent, the Warehousemen, and the Retail Clerks. The complaint, as amended at the hearing, alleged in substance: (1) that the respondent, on or about November 12 and 25, and Decem- ber 13, 14, and 16, 1940, refused to bargai n collectively with the Ware- housemen, which had been certified by the Board 3 as the represent- ative of the employees in an appropriate unit, and with the Retail Clerks, which represented a majority of the employees in an appro- priate unit; (2) that on or about December 7, 1940, the Unions called a strike because of the respondent's refusal to bargain collectively; and (3) that the respondent by its refusal to bargain and by other acts interfered with, restrained, and coerced its employees in the exercise 1 The Waiehousenien filed a charge on December 13 and the Retail Clerks on December 21, 1940 . 2The Board,. on March 28, 1941, ordered that Cases Nos C-1905 and C-1906 be consolidated 3 Matter of Montponle•y Waist & Company and IVaieliousemen's Union, Local No. 206, 26 N L R B. No 46 433257-42-vor. :37--8 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the rights guaranteed in Section, 7 of the Act. On April 8, 1941, the respondent filed its answer, denying that it had engaged in the alleged unfair labor practices. Pursuant to notice a hearing was held at Portland, Oregon, from April 14 to 17, 1941, before George Bokat, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the respond- ent, and the Unions were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the hearing, the counsel for the Board moved to amend the complaint with regard to the unit claimed to be appropriate by the Retail Clerks. He further moved that the pleadings be conformed to the proof. These motions were granted. At the conclusion of the hearing, counsel for the respondent moved to dismiss the complaint. Decision on this motion was reserved and denied by the Trial Examiner in his Intermediate Report. During the course of the hearing, the Trial Examiner made , several rulings on other 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. On June 11, 1941, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon the respondent and the Unions. In his Intermediate Report, the Trial Examiner found that the respondent had engaged in unfair labor practices within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the Act and recommended that the respondent cease and desist from such unfair labor practices, and take certain affirmative action designed to effectuate the policies of the Act. Thereafter, the respondent filed a brief and exceptions to the Inter- mediate Report. Pursuant to notice duly served upon the respond- ent and the Unions, a hearing for the purpose of oral argument was held at Washington, D. C., on August 5, 1941. The respondent was represented by counsel and presented oral argument. The Unions did not appear. The Board has considered the responde_it's excep- tions to the Intermediate Report, and its brief in support thereof, and insofar as the exceptions are inconsistent with the findings, conclu- sions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Tlie-respondent, an Illinois corporation with its principal office in Chicago, Illinois, is engaged in the sale and distribution of merchan- MONTGOMERY WARD & COMPANY 103 Elise through mail-order houses and retail stores. It owns, operates, and maintains 9 mail-order houses, 650 retail stores, and 206 mail order sales units throughout, the United States. The respondent's net sales for the fiscal year ended January 31, 1941, amounted to $515,910,915. This proceeding involves only the employees in Portland, Oregon, where the respondent operates -a mail-order house and a retail store. Approximately 90 percent of the merchandise distributed by the mail- order house and the retail store is shipped to Portland from outside the State of Oregon. The retail-store sales amount to about $3,000,- 000 annually, the mail-order house sales to about $13,000,000 annually. Approximately 60 percent of the sales made by the mail-order house and -about one-half percent of the retail-store sales are delivered to customers who live outside the State of Oregon. At the time of the hearing, the respondent employed about 1,200 persons in the mail- order house and 175 in the retail store. The respondent denies the Board's jurisdiction over the retail store, but ive find such contention to be without merit.4 IT. THE ORGANIZATIONS INVOLVED Warehousemen's Union, Local No. 206, chartered by International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, is a labor organization affiliated with the American Fed- eration of Labor. It admits to membership warehouse employees of the respondent. Retail Clerks' International Protective Association, Local No. 1257, is a labor organization affiliated with the American Federation of Labor. It admits to membership employees of the respondent engaged in selling and handling merchandise. III. THE UNFAIR LABOR PRACTICES A. The refusals to bargain collectively 1. The appropriate unit 'In Matter of Montgonjeri Ward cC Co^npany-a`nd Warehouenlen's Union, Local No. 206," we found that all merchandise checkers in the shipping department; all receiving clerks in the receiving depart- ment; all employees on the' freight elevators; all sorters, completers, and packers, but not billers, in the packing and billing department; all employees of the package-opening department, except authenti- 4 In another proceeding the Board assumed jurisdiction over employees of the retail store. Matter of Montgomery -Ward & Company- and Reuben Litzenberger et al, 9 N L. R. B. 538, enf'd Montgomery Ward & Company , v 'Ndtiotial Labor Relations " Board, 107 F. (2d) 555 (C. C. A. 7). 5 24 N L R B 967. 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cators; all employees of the central-repair unit except those engaged in office-work; all employees in the jewelry-repair unit engaged in handling merchandise, except watchmakers; all employees in the mer- chandise division except tiniekeepers and employees engaged in taking orders; all employees in the supply and multigraph department who fill in and stock supplies; all employees who handle merchandise in the operating, auditing, stock-control, and catalog-service depart- ments; all porters; and all employees at the warehouse, excluding supervisory employees, constitute an appropriate unit. The respond- ent adduced no evidence at the hearing in the present proceeding which would cause us to deviate from our former decision,° and we accordingly find that the employees within the unit found appropriate in the earlier case at all times herein material constituted and now constitute a unit appropriate for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment, and that said unit insures to employees of the respondent the full benefit of their right to self-organization and to collective bargaining and otherwise effectuates the policies of the Act. The unit claimed by the Retail Clerks has not been the subject of prior determination. The Retail Clerks claims that all retail clerks engaged in handling or selling merchandise, including display helpers, tire mounters, stock men, order fillers, markers, messengers, outside, salesmen, and floor cashiers, exclusive of supervisory employees, con- stitute an appropriate unit. The respondent claims that all the em- ployees of the retail store, exclusive of the manager and his direct assistants, constitute an appropriate unit. The unit proposed by the Retail Clerks differs from that proposed by the respondent primarily in that it excludes from the unit employees who are eligible for mem- bership in other labor organizations affiliated with the American Federation of Labor' and are therefore ineligible for membership in the Retail Clerks. Thus, for the most part, the employees excluded from the unit proposed by the Retail Clerks are eligible for member- ship in the Office Employees Union, a labor organization likewise affiliated with the American Federation of Labor, which has been organizing these employees. Organization of the employees has pro- ceeded upon the basis of the Retail Clerks' unit and it appears to be the only labor organization among the employees herein involved. The respondent has not entered into written collective bargaining agreements with any labor organization at its mail-order houses or retail stores. As appears below, the respondent negotiated jointly 6 At the hearing in the present proceeding the respondent made substantially the same contentions that it made in the earlier representation case. MONTGOMERY WARD & COMPANY - -105 with the Retail Clerks and the Office Employees Union. Each organi-, zation, however, represented different categories of employees.7 In the past we have generally excluded office employees from units composed of non-office workers." In view of the negotiations, the fact that the employees sought to be excluded from the unit are within the jurisdiction of other labor organizations, and the further fact that the three labor organizations herein named have organized the respondent's employees into three different units, we find that the unit sought by the Retail Clerks is appropriate. Accordingly we find that all retail clerks engaged in handling or selling merchandise, including display helpers, tire mounters, stock men, order fillers, mark- ers, messengers, outside salesmen, and floor cashiers, exclusive of supervisory employees, at all times herein material constituted, and now constitute, a unit appropriate for the purposes of collective bar- gaining with respect to rates of pay, wages, hours of employment and conditions of employment, and that said unit insures to employees of the respondent the full benefit of their right to self-organization and to collective bargaining and otherwise effectuates the policies of the Act. 2. Representation by the Unions of a majority in the appropriate units The Warehousemen was certified by the Board on August 10, 1940, as the exclusive representative of the unit of warehouse employees, found in the prior representation proceeding and above to be appro- priate. Accordingly we find that on August 10, 1940, and at all times thereafter, the Warehousemen was, and now is, the duly designated representative of a majority of the employees in an appropriate', unit and, pursuant to Section 9 (a) of the Act, the exclusive representative of all employees in such unit for the purposes of collective bargaining with respect to rates of pay', wages, hours of employment, and other conditions of employment. The Retail Clerks commenced organizational activities among the respondent's employees in February or March 1940. Fred Dixon, secretary-treasurer of the Retail Clerks, produced at the hearing all the applications for membership received by this union from em- 7 The respondent points to a letter sent to it on October 2, 1940, by the Retail Clerks and the Office Employees Union which indicated the two unions' willingness jointly to negotiate and sign one contract to cover the office workers and retail clerks in the retail store , as some proof of the appropriateness of the unit contended for by it - As set forth below, however, separate contracts were submitted by these unions and by the Warehouse- men, although joint discussions did take place on all three contracts , on December 13, 14, and 16, 1940. 8 Cf. Montgomeolf Ward d Company, Incorporated and Retail Clerks Intl Protective Assn, etc, 28 N L R B., No. 145. 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees of the respondent. His testimony that at all times subsequent to August 6, 1940, the Retail Clerks had signed applications from a- majority of the employees within the unit of retail clerks found above to be appropriate is unquestioned. , During the negotiations the re- spondent did not dispute, and in fact accepted, the majority claim made by the Retail Clerks.° The pay roll furnished by the respondent to determine the number of employees within the unit found to be appropriate as to the Retail Clerks is dated December 5, 1940. The number of employees on the pay roll of the retail store subsequent to November 1, 1940, at no time exceeded the number on the December 5 pay roll which shows 217 employees within the appropriate unit,. 142 of whom signed applications for membership in the Retail Clerks on or before December 6. Subsequent to December 7, 1940, the Retail Clerks received 46 additional applications. We find that on August 6, 1940, and at all times thereafter, the Retail Clerks was, and now is, the duly designated representative of a majority of the employees in an appropriate unit and, pursuant to Section 9 (a) of the Act, the exclusive representative of all the employees in such unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The refusals to bargain (a) Chronology of events The dates of the principal conferences with the Warehousemen were November 12 and 25, 1940; with the Retail Clerks, September 19, October 22, and November 25, 1940. These conferences were separately conducted with the exception of, the one on November 25, in which both unions joined. On December '7, 1940, both unions declared a strike against the respondent and established picket lines, allegedly because of the respondent's refusal to bargain on the dates set forth above. Subsequent to the commencement of the strike, on December 13, 14, and 16, 1940, the respondent met with the Unions in an endeavor to settle the strike and to negotiate agree- ments. It is alleged that on the dates set forth above the respondent again refused to- bargain collectively with the Unions within the meaning of the Act. The strike was still in effect at the time of the hearing. O When representatives of the respondent and the Retail Clerks formally met for the, first time on September 19, 1940, to consider the proposed contract presented by, the' Retail Clerks , the latter submitted three alternative proposals in respect to its majority claim: ( 1) a consent Board election , ( 2) a check by an independent auditor of its applica- tions against the company pay roll, and ( 3) acceptance of its claim that it represented a majority . The respondent adopted the last alternative MONTGOMERY WARD & COMPANY 107 In order to determine whether or not there was a refusal-to bar- gain it is necessary to discuss these conferences in some detail. First, it should be noted that what transpired at these meetings is sub- stantially not in dispute. Secondly, it should be noted that some- time prior to its first formal meeting with each union, the respondent had received from each a proposed written contract. The respond- ent's official in charge of labor relations and collective bargaining for all its stores and mail-order houses is John A. Barr. The latter authorized, W. B. Powell, the respondent's West Coast labor rep- resentative, with the assistance of E. L. Barth, the Portland retail-, store manager, and O. W..Huddleston, the Portland mail-order house manager, to carry on negotiations with the Unions. The principal negotiator for the Warehousemen was J. W. Estabrook, its financial secretary, and for the Retail Clerks, the same Dixon referred to above. Assisting both Unions, at times, was James Landye, their attorney, aid other representatives of the Unions. The respondent met with representatives of the Retail Clerks on September 19. At this meeting the discussion centered chiefly about the questions of the appropriate unit and whether or not the union represented a majority. The respondent stated that it wanted to negotiate a single contract for both the retail clerks and the office employees. In reply to the Retail Clerks' question of whether or not the respondent would sign a contract embodying such terms as might be agreed upon, Powell replied that so far as he knew the respondent had no signed contract with a labor organization and that the parties should leave the question of the signed contract until they had completed negotiations. About October 2, the Retail Clerks and the Office Employees Union informed the respondent that they would be willing to negotiate one contract for the retail store. The respondent agreed to accept the Retail Clerks' statement that it represented a majority of the clerks. On October 11, preparatory to the next conference between the Retail Clerks and the respondent, which was held on October 22, Barr, instructed Powell as follows: we stand ready to discuss with the Union each of their demands and to explain clearly and frankly the Company's position in regard to each demand. You may further tell the Unions that they can consider your statement of the Company's position as a counterproposal if they desire; . . . I don't see that we should quibble over the term "counterproposal" and I suspect that, in effect, our statement of the Company's position with regard to any union demand is a counterproposal. To date, however, we have not submitted any formal written counterproposal to a union. If you have a situation arise where you think it would 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be advisable to submit a formal counterproposal, I would appre- ciate your getting in touch with me before doing so: As noted below, throughout the negotiations with both Unions, Powell repeatedly refused the Unions' requests to submit a formal counter- proposal setting forth in writing the terms upon which it would be willing to contract with the Unions. The Retail Clerk's proposed agreement contained 41 sections, chief of which were the demands for a union shop, an increase in wages, observance of seniority, and arbitration of all disputes arising under the terms of the agreement. At the October 22 meeting, the parties got no further than a discussion of the union-shop clause, which Powell rejected as against company policy. The events of this con- ference are described in Powell's letter of October 24 to Barr, which states in part the following : Our reply was that we could not agree to Section 1 [union shop clause]. We stated that in order to agree to Section 1 we would have to violate our Company policy, which we would not do. Then Dixon said he would have to return to the employees to give them our position and that he did not know what action they would decide to take. The next day . . . Dixon called and asked if we had any coun- terproposal to offer . . . I explained that Section 1 proposed that we agree to something which is contrary to the policy of our Company and our counterproposal would be that the work of organizing the employees should be done by the union. . . . Also, I called to Mr. Dixon's attention the fact that he decided not to discuss the remaining provisions of the proposed agreement, whereas we had come to the meeting prepared to discuss each provision. He then asked if we had any counterproposal to offer as to the entire contract. To this question I replied that there was certainly no reason to talk counterproposal for the entire contract, as the only provision which had been discussed was Section 1. The next meeting of the respondent with representatives of the Retail Clerks did not take place until November 25, and was held jointly with representatives of the Warehousemen. In the mean- while, a meeting between the Warehousemen and the respondent had taken place on November 12. On November 1, 1940, in preparation for the November 12 confer- ence, Barr wrote Powell a letter which set forth the respondent's position on. each article of the contract proposed by the Warehouse- men. Thus, concerning the proposal that employees who were re- MONTGOMERY WARD & COMPANY 109 -quired to work more than 5 consecutive hours without a meal period should be compensated at overtime rates, Barr stated : There may be some peculiar situation in Portland at which Article 7 is aimed and I would hesitate to express an opinion without knowing all the facts., It would seem, however, that under normal conditions an employee should not be worked more than five consecutive hours without a meal period. Concerning Article XI of the Warehousemen's proposal, the first and second sentences of which provided that there should be no strikes or lock-outs during the life of the agreement, and the third sentence of which exempted certain strikes authorized by the Port- land Central Labor, Council from the operation of the "no-strike" clause, Barr instructed Powell as follows: We certainly can have no objection to the first sentence of Article 11. In fact, this is a sentence which we should prob- ably insist upon being included in connection with any agree- ment. I should say that we have no objection to the second sentence of Article 11, and that the third sentence is one which should be bargained and as to which you should exercise your own judgment on whether to give or not. The proposed contract of the Warehousemen contained 14 articles, and, as with the Retail Clerks' proposals, the principal demands were for a union shop, an increase in wages, a seniority rule, and -arbitration. At the November 12 meeting, each of the 14 articles was discussed, with Powell setting forth the respondent's position on -each article. Not one met with his aprpoval. The union's principal demands were rejected as being contrary to "company policy," which in effect meant the then existing practices of the respondent in regard to wages, seniority, hours, and working conditions, and its policy against any form of closed shop and any method of arbitration. Powell did indicate tentative acceptance of some articles of minor importance with certain modifications, particularly where the term as agreed to would not conflict with the status quo. An example of the type of modification suggested by Powell is contained in Powell's written report to Barr of the meeting of November 12. Thus Powell reported : ARTICLE 3. Section 1 [which provided that five 8-hour days between Monday and Friday should constitute a week's work]- We explained that we could not agree to Section 1 as it is worded. We stated that we could agree to a provision some- what like this : no employee shall work less than four hours per day; no female employees shall work more than- eight hours per day; the work week shall consist of 40 hours of work from 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Friday to Thursday inclusive excluding Sunday. This state- ment conforms to our present policy although we did not make the statement that this was our present policy. Mr. Estabrook suggested that we pass over that point for the present. With regard to the proposals of the Warehousemen's contract that the respondent recognize the Warehousemen as the exclusive repre- sentative of the employees within the appropriate unit and that it agree not to discriminate against union members because of their affiliation, the respondent objected that such matters were covered by the Act and did not constitute questions upon which the parties were free to agree or disagree. Upon the Warehousemen's insistence that the recognition clause constituted an important part of the contract, the respondent offered to include it as a "preliminary whereas clause." The respondent claimed that its policy was to pay wages as high as or higher than those paid by competitors in the same area. Powell testified that prior to the negotiations he was assured by the personnel manager for the Portland store that the "company's wage policy was being followed." Accordingly, at the November 12 meeting Powell, in reply to the union's proposal for an increase in the scale of wages being paid to warehousemen, submitted a list containing the minimum rates of wages then being paid -by the respondent to its warehousemen, and stated that no changes would be made in the existing rates. At this and other meetings, Estabrook disputed the respondent's contention that it was paying as high -wages as its com- petitors. Despite the fact that Barr had indicated approval of the Warehouse- men's proposal that "If employees are worked over five (5) consecu- tive hours without a meal period, all time in excess of five (5) hours . . . shall be at the overtime rate," Powell took the position at the November 12 conference that "We had no objection to Article 7 providing the Union would agree to change the word `five' to `six' which is our present practice." Throughout the negotiations, Powell maintained this position and refused at all times to agree to the Warehousemen's proposal that employees working more than 5 con- secutive hours without a meal period be paid at overtime rates. Although in his discussion with the union, Powell had-rejected the third sentence of Article XI discussed above, which provided that certain strikes should be excepted from the no-strike provision of the contract, in his report to Barr he indicated an intention to accede to the Warehousemen in this regard. Thus Powell reported the following : Before the meeting Mr. Huddleston and I had decided that we could express our agreement with sentences Nos. 1 and 2 but that MONTGOMERY WARD & COMPANY 111 we would object to sentence No. 3. The conclusion we reached after the meeting was that unless we want to insist upon an unconditional agreement not to strike there will be no harm in agreeing to sentence No. 3 .. . The discussion concerning counterproposals at the November 12 conference is described in Powell's letter of November 13 to Barr, as follows : Also, Estabrook asked if we could, in the meantime, prepare a written statement of terms which would be agreeable to the Company. He expressed the belief that we were obligated to submit our position in writing. I answered that it would serve no purpose for us to submit written terms until he could assure us that those terms would be agreeable to the Union. Estabrook then said he did not know whether or not the terms would be agreeable. He said they would have to submit the terms to their membership to find out if the members would agree. He then repeated his request that we-prepare an agreement in writing which will be agreeable to us. He said then they would have some- thing to submit at the meeting of the Union members. I again replied that I did not see any point in our submitting a written proposal until he could assure us definitely that the terms would be agreeable. The meeting then broke up with nothing further being said on this point. That Powell was troubled about the reasonableness of the position he had taken is evident from the concluding remarks in his letter to Barr, as follows : I would like to submit this for your consideration. Do you feel, that our obligation to bargain in good faith requires that we submit the Company's position in writing.? The question of reasonableness is involved here and I have not yet reached a conclusion in my own mind. There is • some argument to the effect that if we will state verbally the terms which are agreeable to us we should have no objection to reducing those terms to writ- ing. This seems to be in line with the Court decisions which require that an employer is obligated to sign an agreement where he has reached a verbal agreement with a Union. On the other hand it seems that we are perfectly within our rights to say that there is no reason to submit our terms in writing until we reach a meeting of the minds by verbal discussion. It does seem useless to present our terms in writing when we are pretty sure they will not be accepted. Another point to'consider is the Union's statement that they want something in writing to submit to their membership and 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there is a question as to, whether we are obligated to furnish a written statement of terms for that purpose. As Esterbrook will probably call me next week I will appreciate your comments as soon as possible. The reply' of Barr to Powell on November 29, is significant in that it contains the philosophy of the respondent on the subject of collec- tive bargaining, which position it consistently maintained, as set forth below, throughout all its negotiations with the Unions herein : To date, we have had no situation where we have sought a con- tract with a union. Therefore, by the very nature of the situa- tion, the initiative lies with the union. We propose to fulfill our obligation to bargain with the unions in good faith, but this does not pass to us "the burden of going-forward". The initiative continues to lie with the union throughout the bargaining process. The only thing which will change our status in this regard is a change in our relative economic positions of such nature as to induce us to seek some concession from the union . . . As Mr. Ball stated, Ave do not think that the Act places upon an employer the absolute duty to make counterproposals. This does not mean, however, that we are to take an abnormal or un- natural attitude with regard to counterproposals. We should explain our position on any point being bargained when re- quested to do so, and in many instances this will, in substance include a counterproposal whether or not it is expressly so labeled . . . Mr. Ball did not mean that counterproposals in the broad sense should never be made. He only meant that we should not take the initiative in the bargaining process. To state in different words, we do not want you to feel under abnormal restraint in the statement of the Company's posi- tion. . . . This is necessary to good faith and we should not be unduly concerned over whether or not our statement of position contains what might be considered a counterproposal. Just keep in mind, however, that it is the union, not the Company, which is seeking an agreement . . . . .. I will close with a "recapitulation" of some of the high points. 1. The purposes of bargaining are best served by oral negotia- tions. We need not state our position to the union in writing. 2. The union is seeking something from us. We are not to assume the initiative by volunteering proposals or counterpro- posals. 3. In discussing individual, clauses state that you have no pres- ent objection to clauses which are not objectionable, but do not MONTGOMERY WARD & COMPANY - 113 "agree" to such clauses . You can only agree to a contract as a whole. 4. Insist on a "no-strike" clause without qualifications or exceptions. 5. Whenever in doubt as to what you should do resolve the doubt in favor of the Company. Err on the side of conservation if you err at all. 6. Do not rush the bargaining process and do not yourself take the initiative in seeking an agreement. 7. Bargain in good faith. State the Company's position on the points raised honestly and frankly. Your statement of posi- tion may or may not contain what might be considered as a counterproposal. 8. Whether or not any agreement reached will be reduced to writing and signed can only be determined after an agreement is reached. Prior to that time a discussion of this point is pre- mature. You're doing a good job, Bill. Keep it up. Keep us advised of what you are doing and contact us immediately if something gets "hot'". Barr's instructions to "Insist on a `no -strike' clause without quali- fications or exceptions" constituted, it will be observed, a repudiation of his earlier instructions which authorized Powell to use his dis- cretion in such matters, and only after Powell had indicated that he intended to agree to Article KI of the Warehousemen's proposal which provided for certain exceptions to the no-strike clause. On November 7, 1940, Thomas White, secretary-treasurer of the Western Warehouse Council which consisted of 58 local unions of warehousemen in the 11 Western States, wrote the respondent that it had "up to the present time refused to sign an agreement for the wages, hours and working conditions" of the Warehousemen in Port- land, and threatened to take "economic action" unless "labor disputes with Mr. Jack Estabrook of Portland, Oregon," and other repre- sentatives of local unions in the Western establishments of the respond- ent were "settled to the satisfaction of our organizations." Thereafter, White, Estabrook, and three representatives of the Retail Clerks niet with the respondent in Oakland, California, on November 25, 1940. We credit Estabrook's uncontradicted testi- mony that at the November 25 meeting, I made the statement, . . . that we tried to negotiate with Mr. Powell and Mr. Huddleston; . . . but we were not getting any- where, and that we thought we were being stalled, that 1ve_had heard so much about company policy that we were getting tired 11^ DECISIONS OF NATIONAL LABOR RELATIONS BOARD of it, and we wanted to know what it was, if they had a book on company policy, and, if so, we would like to see it, . . . so that we would know better what to do. They didn't seem to have a book, or seem to be able to furnish us with a book . . . Mr. White and myself volunteered to go to Chicago with Mr. Powell if it was necessary, in order to negotiate our contract ; we stated that we wanted to talk with the people that we were to negotiate with, and up until then we had not been able to ... He -[Powell] said that he would take that under advisement. Part of the events of the November 25 meeting are described in the following excerpt from Powell 's letter of November 26 to Barr : He [White] wound up his speech with an ultimatum that unless the Company would agree to a union ship ( sic) at Portland they were prepared to take joint action against the Company in the eleven Western states. Mr. Estabrook then suggested he would be glad to fly to Chicago to talk with you, if there were some possibility that our policy could be changed . At first they insisted we give them a reply within twenty-four hours, but later agreed to allow us until noon on Thursday , November 28. ,I will wait until Thursday morning at which time I will call Mr. White in San Francisco and explain that you will be glad to meet with union representatives in Chicago and listen to, their argument, but I will not assure him that any change in policy is contemplated at the present time. Thus it is to be observed that although the respondent had made its decision , as early as November 26, on the Union 's suggestion that the negotiations be continued in Chicago , and although the respondent was fully aware of the Union's desire for an early reply, it deliber- ately delayed its reply to White until November 28. On December 2, Dixon, the secretary -treasurer of the Retail Clerks, who was unable , to attend the November 25 meeting , telephoned Barth, the manager of the respondent's retail store in Portland, and told him that "we were very anxious to bring about a settlement; that our people were getting very anxious ; that they thought "that the company was stalling for time," and that the Retail Clerks was willing to withhold strike action if the respondent would arrange for a meeting with them. Barth replied that he would try to induce Powell to come to Portland . It appears that Dixon called Barth again on December 4 or 5 and told him that the strike of the Retail Clerks at Portland would be withheld until December 6 or 7, pending a meeting there between the Retail Clerks and responsible company officials. On December 4 the employees of the respondent 's Oakland plant struck . Thereafter Powell remained in Oakland attempting MONTGOMERY WARD & COMPANY 115 to 'settle the strike there. On December 5, Barth telephoned Dixon in Portland and told him that he had spoken to Powell and that Powell had stated that negotiations were being carried on in Oakland' in behalf of the Retail Clerks. Dixon replied that the negotiations at Oakland concerned only the Oakland employees of the respondent and that he proposed to negotiate for the Portland employees at Portland. Dixon offered, however, to permit negotiations to be car- ried on at Oakland in behalf of the Portland employees if it were impossible for the respondent to send a representative to Portland. Hearing nothing further from the respondent on December 6, the members of the Retail Clerks unanimously,vdted to go on strike at Portland the next day, primarily because of their sentiment that the respondent had refused "to negotiate a contract at Portland." Im- mediately thereafter the Warehousemen declared a strike at Portland to support the Retail Clerks and because, according to Estabrook, whose testimony we credit, "the [Portland] membership got tired of Montgomery Ward stalling us around." On December 6, prior to the strike at Portland, White had assured Powell that since they were making progress in their Oakland negotiations he would see that no strike action was taken at Portland; but on the next day White informed Powell that he no longer had authority to act for the Retail Clerks at Portland "and that the action which had been taken was out of his control." On December 13, 14, and 16, Frank Ashe, a conciliator of the United States Department of Labor, and representatives of the unions, in- cluding the Office Employees Union, which had joined in the strike at Portland, conferred jointly with the respondent in respect to the Portland employees. During the December 13 conference, Powell was asked whether the respondent had any proposal to make. He replied "that our proposal or demand at present was that the picket lines be removed and that the employees be allowed to return to work." He added that the "Company had no other proposal to submit. nor did the Company intend to make any other demands on the Union." Landye asked whether, if the Unions withdrew their request for a union shop, the respondent would be willing to submit to arbitra- tion the question of what clauses should be included in the contract. The answer was in the negative. Landye then asked if the respond- ent would agree to the proposed contract submitted by the Warehouse- men if the union shop clause were omitted. Powell stated that the respondent could not agree to the remainder of the proposal as it had substantial objections to certain provisions. According to Lan- dye's uncontradicted testimony which we credit, he asked the respond- ent for a counterproposal on the contracts submitted by the Ware- 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD housemen, the Retail Clerks, and the Office Employees Union and that- I stated that I wanted the company to take each section of the unions' contracts , and if they agreed, to write it out that way as a section , and if they disagreed, to delete it, and if they had any additions, to put it on the contract . . . Mr. Powell stated- that the company was not asking anything from us, and that it was up to us to make proposals that would please the company; and that he said his conception of negotiations was that the com- pany had no affirmative duty to do anything, and that it was up to the union to please the company. And he stated that they wouldn't submit a counter proposal. The meeting then broke up. That afternoon Ashe telephoned ,Powell and suggested another meeting for the following morning. Powell replied "that we [the respondent] had nothing further to submit but that if he [Ashe] felt a further meeting was advisable we would be glad to meet." Accordingly, the three unions and the respondent met again the following day. Ashe opened the meeting by asking Powell if the respondent "had anything at all in the way of a proposal to submit which might provide a basis for an agreement." Powell replied that the respondent had nothing further to submit other than the state- ment of its position in regard to each one of the proposals thereto- fore submitted. Powell was then asked if the respondent would be willing to sign an agreement which merely set out its present policies and practices. According to his own report, Powell replied as follows: I replied that the question of the form of agreement, that is, whether it should be verbal or written, is premature at this time. I suggested that if we could reach an agreement upon substantial provisions, then that question should be considered. Allen then stated that if we could reach agreement would we be willing to sign it. I replied that possibly we would but that I ,thought a discussion of that question was premature. Estabrook and Dixon then brought up the matter of wages and claimed that the respondent was not paying the prevailing wage. Powell disagreed. Estabrook then mentioned the names of several local concerns, stating that they were paying more for comparable work than the respondent. Estabrook testified that the discussion over wages "died down by the time that I offered to bet something that they paid less than the others." In reply to Ashe's request that he be permitted to employ a stenog- rapher to take notes on what transpired, the respondent stated that MONTGOMERY WARD & COMPANY 117 it "would object to such procedure" on the ground "that it did not feel the presence of a stenographer would facilitate the discussion." Thereafter the meeting- adjourned with the -understanding that the' parties would meet again on December 16. At the conference on the 16th, attended by the three unions and the respondent, Estabrook suggested that they go over the Ware- housemen's -proposed contract article by article. Powell questioned the value of doing so unless the Warehousemen was willing to with- draw-its demands in respect to a union shop, seniority, and arbitra- tion. The unions replied that only the respective unions' members had authority to withdraw the respective union demands, but upon Estabrook's statement that there was a possibility that the demand for a union shop would be withdrawn, they proceeded to discuss the entire' contract proposed by the Warehousemen. A similar procedure was followed with respect to the proposed contracts of the Retail Clerks and the Office Employees Union. The respondent took the same position on the principal clauses in dispute, that is, as to a union shop, seniority, increases in wages, and arbitration, as it had done theretofore, although the Unions indicated their willingness to forego the arbitration clauses and receded in other respects from their original demands. The only concessions made by the respond- ent, with possibly three minor exceptions,1o were such as would not alter the status quo and conformed to its "policies." In discussing the Warehousemen's proposed agreement, the respondent maintained its earlier position that if the recognition clause has anyt place in the, agreement it should be in a preliminary `whereas' clause" and refused altogether to include in the contract a clause providing that the respondent would not discriminate against union members. Although Powell had -previously informed Barr' that "As a matter of fact we do have working Supervisors in the Portland Plant" and had offered to the Warehousemen at the November 12 conference to pay such working supervisors 3 cents per hour more than the em- ployees' under their supervision, Powell, at the conference on Decem- ber 16, rejected the Warehousemen's proposal that working super- visors be paid 50 cents per day more than other employees, on the asserted ground that "we did not believe we employed persons such as those mentioned" and "we could not grant any concessions in the rate of pay of these people." At the close of the conference, Ashe stated that the clauses of the contracts to which the respondent ob- "o These were all in regard to the Retail Clerks' proposed agreement The respondent agreed to review regularly the records of all employees, to provide stock help for the women' s coat and yardage and blanket departments , and to supply identical garb where required by the respondent There was no showing whether or not the respondent's agieement to these matters in any way altered the status quo. In Powell's words, "There were not any concessions [ on respondent's pact] of major importance ; there,were, [ would say, some minor concessions." 433257-42-N (IL 37-9 1.18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD jetted primarily were those providing for any union shop, any increase in wages, a seniority rule, or any form of arbitration, and stated further: "We aren't getting any place; we might as well call it quits." The meeting then adjourned. (b) Concluding findings The issue to be determined is whether or not the respondent has fulfilled its duty to bargain collectively with the Unions as required by the Act. In general terms, the scope of that duty appears from our decision in Matter of Singer Manufacturing Co. and United Elec- trical, Radio cPc Machine ZVorlcers of America, etc.,` wherein we held as follows : Collective bargaining, as contemplated by the Act, is a pro- cedure looking toward the making of a collective agreement by the employer with the accredited representatives of its employees concerning wages, hours, and other conditions of employment. The duty to bargain collectively, which the,•Act imposes upon employers, has as its objective the establishment of such a con- tractual relationship to the end that employment relations may be stabilized and obstruction to the free flow of commerce thus prevented ; and, indeed, the protection to organization of em- ployees afforded by the first four subdivisions of Section 8 of the Act is intended to make possible and to implement the stabilization of working conditions through collective bargaining conducted between employers and the freely designated representatives of their employees as equals. The duty to bargain collectively is not limited to the recognition of the employees' representatives qua representatives,.or to a meeting and discussion of terms with them. The duty encompasses an obligation to enter into discussion and negotiation with an open and fair mind and with a sincere purpose to find a basis of agreement concerning the issues presented,* and to make contractually binding the understanding upon the terms that are reached.** . . . * Manifestly, in exploring the possibilities of reaching an agree- ment the open and fair-mindedness and sincerity of purpose re- quired by the Act contemplates an interchange of ideas, the com- munication of facts peculiarly within the knowledge of either party, personal persuasion, and willingness to modify demands in accordance with the total situation thus revealed. Sae Matter-of S. L. Allen d; Company, Inc., a corporation and Federal Labor Union Local No. 18526, 1 N: L. R. B. 714, at page 728., 1 24 N L. R B` 444 , enf'd as mod , Singer Mfg. Co v. N L. R. B, 119 F. (2d) 131 (C 'C A 7 ), cert. den., 313 U S. 595. VfONTGOMERY WARD & COMPANY 1191 ** Matter of St. Joseph Stockyards Company and Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union No. 159, 2 N. L. R. B. 39. We have reaffirmed this inter- pretation of the Act in all subsequent cases involving this question- See Matter of Westinghouse Electric c Manufacturing Company and United Electrical, Radio and Machine Workers of America, 22 N. L. R. B., 147, and cases cited in footnote 14, therein .. . Under the Act, the respondent was obliged to bargain with the Unions as exclusive representatives of the employees in the appropriate units herein'above found,12 to embody understandings that might be reached with the Unions in signed agreements,13 and to incorporate into the contracts, upon request, full recognition of the Unions, in express terms, as exclusive bargaining agents.14 Moreover, the respondent, pursuant to its duty to bargain collectively in good faith, was required to take an active part in the negotiations to the end that agreement should be reached if possible.1' We are of the opinion that the re-- 17 N. L R. B. v. Fansteel Metallurgical Corp , 306 U. S. 240. 13 H J. Heinz Co. V N L. R. B, 311 U. S 514 >.. McQnay-Norris Mfg Co v N L R B , 116 F (2d) 748 (C C A 7). colt den , 313 U S. 565, entg Matter of McQuay -Norris MJg Co and United Autoniob,'e TVorl, ers of America, Local No 126, 21,N. L R. B 709 ' 15Cf, for example, N. L R B v Reed if Prince Mfg Co., 118 F (2d) 874 (C C. A. 1), cert . den., 313 U. S 595, where the Court stated The respondent . . was legally bound to confer and negotiate sincerely with the representatives of its employees It was required to do so with an open mind and a sincere desire to reach'an agreement in a spirit of amity and cooperation Similarly 'in N L. R. B. v. George P. Pilling if Son Co., 119 F (2d) 32 (C C.' A. 3), the Court stated. Bargaining presupposes negotiations between parties cairied on in good faith. The fair dealing which the service of good faith calls for must be exhibited by the parties in their approach and attitude to the negotiations as well as in their specific treat- ment of the' particular subjects or items' for negotiation.' For such ' purpose, there must be common willingness among the parties to discuss freely and 'fully their respective claims and demands and, when these are opposed , to justify them on reason when the proffered support fails to persuade or if, for any cause , resistance to the claim remains, it is then that compromise comes into play But, agreement by way of compromise cannot be expected unless the one rejecting a claun or demand is willing to make counter -suggestion or pioposal . A nd, where that is expressly invited but is refused , in such circumstances the refusal'may go to supliort a want of good faith and, hence, it refusal to bargain The considerations are especially applicable to negotiations looking to collectrn e bargaining and have been so regarded by the courts. [ Citations omitted ] ' In N. L. R. B. v. Highland Paih.Mfg Co,, , 110 F. (2d) 632 (C. C A. 4); the Court stated: The Act, ' it is true , does not require that the parties agree ; but it does require that they negotiate in good taith with the view of reaching an agreement if'possible In Globe Cotton Mills v ' N. L. R 13., 103 F. ( 2d) 91^ '( C. C A 5 ), the Court stated : There is a duty on both ' sides to enter into discussion with an open and fair mind , and a sincere puipose to find a ' basis of agreement touching wages' and hours and conditions of laboi , and if found to embody it in a contiact as -specific as possible, which shall stand dut'as a mutual guarantee of conduct ; and as` a guide for, the adiiistnient 'of grievances: In N. L R. B . v. The Boss Mfg Co., 118 F (2d) 187 (C. C. A.,7), the Court said: Collective bargaining, as contemplated by the Act, is a procedure looking toward the makink of a collective agreement between the employer and the accredited repre- sentative of his employees concerning wages , hours and other conditions of employ- 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent failed in a number of respects to comply with its obligation to bargain collectively , as thus defined. The respondent , although requested to do so, did not agree to embody understandings that might be reached with the Unions in signed con- tracts. Thus, at the meetings of September 19 and December 16, Powell refused to agree to sign a written contract , stating that the respondent had never signed a contract with a labor organization and that while it "possibly" might sign a contract , "the question of the form of the agreement, that is, whether it should be oral or written is,premature " until "we could ,reach an agreement upon substantial provisions." Far from being a mere formal part of the agreement, the written contract constitutes the very object of collective bargain- ing, "the absence of which . . . tends to frustrate the end sought by collective bargaining .is The refusal of the respondent to agree to grant the Unions the very object of collective bargaining was tanta- mount to a refusal to bargain altogether 17 We deem it immaterial in this connection that when the Unions requested signed contracts the parties had not yet reached complete understanding as to what would be included in the contractsis and that although the respondent did not agree to reduce understandings to a signed contract , the Unions nevertheless discussed with the respondent proposed wages , hours, and other conditions of employment. 19 ment. Collective bargaining requires that the parties involved deal with each other with an open and J air mind and sincerely endeavor to overcome obstacles or diffi- culties existing between the employer and the employees to the end-that employment relations may be stabilized and obstruction to the free flow of commerce prevented [Citations omitted ] In Singer Mfg. Co v N. L if. B , 119 F (2d) 131 (C C A. 7), cert den , 313 U S 595, the Court observed that the Act constitutes "remedial legislation," placing upon the employer the duty, in the interest of public welfare, to enter into discussion with its em- ployees with open and fair minds, with sincere purpose to find basis for agreement And in Wilson & Co v. N. L R. B, 115 F. (2d) 759 (C. C A. 8), the Court noted as a 'basis for sustaining the finding of the Board that the employer had not bargained col- lectively within the meaning of Section 8 (5), That there was a lack of such cooperation between the management of petitioner and the representative of its employees in collective bargaining as would be likely to avoid future labor difficulties ie H J. Heinz Co. v. N. L R. B , 311 U S. 514. 17 ibid. isCf N. L it. B v Highland Park Mfg. Co, 110 F. (2d) 632 (C. C A 4) ; N. L R. B V. Wilson & Co., 115 F. (2d) 759 (C C A. 8) In the latter case the Court stated the following: ". . . we do not believe that negotiations which are carried on without any intention of reaching a -definite, agreement or of reducing to writing any agreement that may be reached, constitute a full compliance with the Act " 10 Cf. McQuay-Mort is Mfg Co. v. N. L. R. B , 116 F (2d) 748 (C. C. A 7), cert. den , 313 U. S. 565. The Court; in overruling a similar defense, stated the following: " There could be no genuine bargaining as contemplated by the Statute until complete recognition had been granted as the Act requested . . [The employer's bargaining with the Union], while limiting its recognition solely to members of the Union, made such bargaining abortise and of'ittle, it any, effect" MONTGOMERY WARD & COMPANY 121 Furthermore, at the November 12, and December 16 meeting's, the respondent refused to agree to a 'clause of the Warehousemen's pro- posed contract by which the respondent promised to recognize it as exclusive representative, on the asserted ground that recognition was a question of fact which neither the Union nor the respondent was free to agree upon. It is true that the -respondent offered to include,a recognition clause as a "preliminary whereas clause." In our opinion, however, this does not satisfy the respondent's obligation to "bind itself to give exclusive recognition" to the Warehousemen.20 The re- spondent, again asserting that the matter was "covered by law and is not a subject of agreement," refused at these meetings to insert in the contract with the Warehousemen a clause by which the respondent promised-not to discriminate because of.union membership. But as Ashe, the Department of Labor Conciliator, pointed out, the only explanation for the respondent's refusal to agree to include this clause in the contract was that it "merely did not want to give the Union the satisfaction of having it there." The Cricuit Court of Appeals for the Eighth Circuit pointed out in the Wilson case,21 that "A refusal to do what reasonable and fair-minded men are ordinarily willing to do, upon request, may certainly be taken to be an indication of a lack of proper intent and good faith in collective bargaining." Clauses pro- hibiting discrimination because of union affiliation are frequently sought by labor organizations to give to the employees a feeling of security in the exercise of the rights guaranteed in the Act '22 and such clauses are not uncommonly embodied in collective bargaining con- tracts. Upon the entire record, we find that the respondent, without cause, refused upon request to embody the prohibition against union discrimination in a contract, and that the respondent, by this "refusal to do what reasonable and fair-minded men are ordinarily willing to do," demonstrated:its refusal to bargain collectively in good faith. The respondent's declarations abundantly disclose an attitude incon- sistent with its obligation actively to cooperate with the Unions and to endeavor to reach understandings with them. As Barr, speaking for the respondent, told its agent, Powell: ". . . It is the union, not the Company, which is seeking an agreement." Accordingly, Powell told the Unions at the December 13 conference that "his con- ception of'negotiations was that'the company had no affirmative duty to do anything and that it was up to the Union to please the company." 21 Matter of McQuay-Norris Mfg. Co. and United Automobile Workers of America, Local No. 226, 21 N. L. R. B. 709, enf'd National Labor Relations Board v.' McQuay-Norris Mfg. Go, Ibid. 21 See supra, footnote 18. 22 See, for example, Matter of Sanger Mfg Co. and United Electrical, Radio and Machine Workers of America, etc, 24 N L. R. B 444, enf'd as mod ,, Singer Mfg. Co. V. National Labor Relations Board, supra, footnote 15. 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Similarly, the respondent in its brief, states that "the duty to bargain is no more . . . than the duty to meet the employee representative .and do . . . or say nothing which would make a binding trade agree- ment impossible of attainment." It takes the affirmative efforts of the two-parties, however, to make a collective bargain. The Board and court decisions hereinabove cited clearly establish that the respondent by its negative attitude was refusing to bargain collectively in good faith. Pursuant to its hypertechnical approach, the respondent was willing to meet with the Unions when, requested, listen to their demands, and Explain its position thereon. Further than this the respondent re-- fused to go and it persisted, rather, in the view that the obligation of taking further steps rested upon the Unions alone. Thus, the respond- ent was opposed to submitting to the Unions genuine counterproposals. It is true that Barr, assertedly, did not object to the respondent's ex- planation of its position "on any point being bargained when requested to do so" even if such explanation did "in substance include a counter- proposal." Nevertheless, the.respondent objected to taking "the initia- tive in the bargaining process"; that is, objected to formulating pro- posed conditions of employment affirmatively, as counterproposals to union demands. That the respondent was opposed to affirmative ef- forts on its part to find a basis for agreement by means of counterpro- posals appears also from Barr's statements that the respondent had at 110 time sought a contract with a union and that Therefore, by the very nature of the situation, the initiative lies with the union. We propose to fill our obligation to bargain with the Unions in-good faith, but this does not pass to us "the burden of going forward". The initiative continues to lie with the union throughout the bargaining process. The only thing which will change- our status in this regard is a change in our relative economic positions of such nature as to induce us to seek some concession from the union . . . ' As Mr. Ball stated, we do not think that-the Act places upon an employer the absolute duty to make counterproposals .. . The respondent was, at no point willing to assume "the burden of going forward" in the negotiations and was thus unwilling, without reason, to cooperate with the Unions in- bringing the collective bar- gaining negotiations to a successful conclusion'. Thus, at the No- vember 12 conference, after the respondent had rejected the Ware- .housemen's-written proposals, the Warehousemen asked the respond- ent for a written statement of terms which would be agreeable to the respondent. The respondent rejected this request on the asserted ground that written terms would serve no purpose armless the respond- MONTGOMERY WARD & COMPANY 123 ent were assured in advance that those terms would be agreeable to the Union. Although Estabrook, in behalf of the Warehousemen, explained that the union membership would have to pass upon the terms and that written company counterproposals would facilitate submission of the problem to the union membership, the respondent again rejected the request on the specious ground that the terms would-have to be acceptable to the Union before the respondent would submit them in writing. Again at the December 13 conference, the Unions requested and were refused counterproposals. Moreover, in response to the Union's suggestion at that conference that the re- spondent "take each section of the union's contracts, and if they agreed, to write it out that, way as a section; and if they disagreed, to delete it, and if they had any additions, to put it on'the contract ...," the respondent replied that it was not asking anything of the Unions and that it was up to them to make proposals that would "please the company." The respondent has offered no explanation for its re- fusal to submit counterproposals or written countersuggestions. We are of the opinion, and find, that the respondent's attitude and con- duct with respect to the union requests for counterproposals evidence "a want of good faith and, hence, a refusal to bargain." 23 Also illustrative of the respondent's bad faith in the negotiations is its repeated rejection of union proposals on the general ground that they were not consonant with company policy or practice. We are satisfied upon this record that the respondent, in thus relying simply on existing practice as a mason for not agreeing to union pro- posals, failed to fulfill its obligation "to discuss freely and fully their [the parties'] respective claims and demands and, when these are opposed, to justify them on reason." 24 Other conduct of the respondent furnishes further evidence of its refusal to bargain collectively in good faith. It will be recalled that although the respondent was fully aware of the Unions' desire for an early reply to their suggestion at the November 25 meeting. that a further conference take place at Chicago, and although the respondent had decided as early as November 26 to agree to the Chicago conference, the respondent deliberately postponed convey- ing this information to the'Unions until November 28. The respond- ent's inconsistent behavior is also relevant in this connection. For example, although Barr, whose instructions Powell ordinarily fol- lowed, indicated that he had no objection to the Warehousemen's n See the Pillcnq case, supra, footnote 15; also Globe Cotton Mills V. National Labor Relations Board, 103 F. (2d) 91 (C C A. 5). 11 See , the Pilling case , supra, footnote 15 ; ef. the definition of collective bargaining advanced ' by, the National Mediation Board, 8 L. R R., No 24, p 827, 831: "successful negotiations must necessarily be on the basis of mutual consideration of the merits of the arguments presented by the respective parties." 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proposal that employees working more than 5 hours without a meal period be paid at. overtime rates, Powell at all times insisted that the respondent's past policy of not paying overtime for less than 6 con- secutive hours' work be followed. Similarly, when Powell indicated to Barr that he might acquiesce in certain exceptions to the pro- posal forbidding strikes during the contract period, Barr repudiated his prior instructions to Powell to use his own discretion in such matters, and ordered him to "insist on a `no-strike' clause without qualifications or exemptions." Again Powell stated to the Unions at the December 16 meeting, in response to a proposal concerning working supervisors, that "we did not believe we employed persons such as those mentioned"; yet he had already acknowledged to Barr that "as a matter of fact we do have working Supervisors in the Portland plant." Finally, the respondent, as noted below, solicited the individual striking employees to return to work in violation of Section 8 (1) of the Act. The respondent thereby violated its obligation to deal with the Unions as the exclusive representatives of the employees in the appropriate units herein found and such conduct reflects on its good faith in the collective bargaining negotiations .25 - Barr's instructions to Powell and the respondent's actions disclose that the respondent, while going through the motions of meeting and conferring with the Unions, was not in fact bargaining col- lectively. Reviewing the whole congeries of events, we find that the respondent did not, as it was bound to do, "confer and negotiate sincerely with the representatives of its employees . . . with an open mind and a sincere desire to reach an agreement in a spirit of amity and cooperation." 26 As above noted, the Unions on December 7 declared a strike at the • Portland plant. The, strike was still in effect at the time of the hearing. A substantial cause of the strike and its prolongation was the justified feeling of the Unions that the respondent was "stalling"; `that is, not fulfilling its obligation to bargain, collectively as required by the Act. We find that on September 19, 1940, and at all times thereafter, the respondent has refused to bargain with the Retail Clerks and the Warehousemen as the exclusive representatives of its employees in , ab National Labor Relations Board v. Remington Rand, Inc., 04 F. (2d) 862 (C C. A. 2), cert. den., 304 U. S. 576; The M. H. Ritzwoller Company v . National Labor Relations Board, 114 F (2d) 432 (C C A 7), enf'g as modified Matter of The M. H. Ritzwoller Company and Coopers International Union of North America, Local No. 28, 15 N. L. R. B. 15; National Labor Relations Board V. Lightner Publishing Corp. of Illinois , 113 F. (2d) 621 (C C. A. 7), enf'g as mod Matter of Lightner Publishing Corporation of Illinois and Chicago Printing Pressmen's Union, No. 3, Chicago Typographical Union No. 16 , 12 N. L. R. B. 1255 ; Matter of Manville Jenckes Corporation and Woonsocket Rayon Company and Independent Textile Union of America , 30 N. L R. B., No. 60. 21 See the Reed of Prince case , supra, footnote 15. MONTGOMERY WARD & COMPANY 125 appropriate units with respect to rates of pay, wages, hours of employ- ment, and other conditions of employment, and that the respondent; has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. We find further that the respondent's refusals to bargain caused and prolonged the strike at Portland, which began on December 7, 1940. B. Interference, restraint, and coercion On Sunday, December 8, 1940, the day following the commencement' of the strike at Portland, Robinson, superintendent of operations of the mail-order house, called a meeting of the operating superintend- ents of each floor, handed them a list of the names and telephone num- bers of employees who worked under them, and instructed, them to transmit to those employees a message as follows : . Since you were not at work today I wanted to let you know that we are operating tomorrow as usual and your job is' open for you if you want to come in. (When you have made the above statement, listen for the em- ployee's reaction to it. Do not make any further statement unless the employee asks some question. It is not possible to set out all the possible questions which you may be asked, but in answer- ing the questions you should confine yourself to a repetition of the thought contained in the quotation above. When questions are asked, you may answer them frankly, but above all, do not in any way insist that the employee should come to work or intimate that their jobs will be in danger. The main purpose of this call is to notify the employee that the plant is operating and his job, is waiting for him if he wants to come in.) From the testimony of W. A. McGowan, operating superintendent of the fifth floor of the mail-order house, it is evident that the above message was delivered to the employees by the respondent's super- visory employees. However, the testimony of three employees, who worked under McGowan, and who did not report for work on De- cember 7, of how McGowan attempted to procure their return to work shows that he went beyond these instructions. Helen Blackburn testi- fied that on the evening of the day the strike was called 27 she tele- phoned McGowan to tell him that she had not been to work that day because she did not want to cross the picket line and that McGowan replied, "that I didn't have to go through the picket line, that I could 21 Either McGowan must have received his instructions the day of the strike or this call must have been made on the day following the strike, because Mrs. Blackburn testified that she did her telephoning after she had received a call that the store would be open for operations Monday morning. 126 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD go through the back way ... He said for me to tell the kids that if they weren't there on Monday morning, (December 9), he was going to reinstate [sic] them with new employees." Robert Fullerton testified that one evening, about the middle of the week following the strike, McGowan and his wife visited his home for the first time and McGowan stated that "he was just making a friendly call . . . coming around to each and every one that he figured he could trust . . . in order to get them back to work, and to tell them that if they were not there by a certain date, they would have to have their jobs refilled." According to Fullerton, McGowan informed him during the conversation that the respondent "would never go union, that if it did, they would lock the door." William E. Hough testified that during the first week of the strike he" learned that in his absence McGowan had visited his home. He decided to repay the call. According to Hough, McGowan told him- ... if I wanted to come back to work that I didn't have to really go through the picket line. I could come around through the back way of the store . . . He said he hated to see me out; . . . he didn't want to see me lose money . . . He said that the store would never go union ; that they would lock the store up and send all the books and everything to the Chicago house before they would sign a union contract . . . He told us about Beede and Jack Walker-those are the two boys working on our floor- coming around through the back entrance . . . And before I left, he said he would like to have me get hold of as many fellows as I could and talk to them and tell them they could come in the back door. . . . McGowan denied having any telephone conversation with Black- burn, and in effect. denied the aforementioned testimony of Fullerton and Hough. Present at McGowan's home the evening that Hough paid his visit was another employee by the name of John B. Long, who wanted McGowan's advice as to whether to return to work. Long did return to work on December 17, and was in the employment of the respondent at the time he testified in its behalf. Long corrob- orated the testimony of McGowan as to what had occurred at the latter's home. In his Intermediate Report the Trial Examiner states that he "carefully observed the demeanor of the aforesaid witnesses and was" more favorably impressed by Blackburn, Fullerton and Hough than by McGowan and Long." Furthermore, analysis of the testimony of both McGowan and Long reveals certain admissions indicating the substantial accuracy of the testimony of Fullerton and Hough. While McGowan insisted that he told both Hough and Long. MONTGOMERY WARD &, COMPANY 127 that he could not advise them as to whether or not they should return to work, nevertheless, he admitted that they did discuss- about going through the picket line . . . I know that I brought it' out in this respesct, that Jack Walker and a few of the boys were driving into the parking lot and coining to the plant that way. I personally said that I wouldn't go that way; that I would walk up the ramp to the second floor. Although McGowan testified that his suggested method meant going through the picket line, it is clear that McGowan was attempt- ing to persuade both employees to return to work. While denying that lie made any statement that the respondent "would never go union," McGowan admitted having stated that the respondent would not, agree to a closed shop. While claiming that McGowan merely stated that the respondent would not agree to a closed shop, the respondent's witness Long admitted that the statement was made in reply to a question of whether the store "would ever go union." Upon the entire record, we credit the testimony of Blackburn, Fullerton, and Hough as being in substantial, accord with the facts, as did the Trial Examiner. Despite its instructions not to "in any way insist that the employee should come to work or intimate that their jobs will be in danger," the respondent is clearly responsible for McGowan's coercive state- ments to Blackburn, Fullerton, and Hough .211 Moreover the respond- ent offered no evidence to show that any of its employees-were under any misapprehension that the respondent was not operating or that their jobs were not open for them if they wanted.to work. Further, as -we have found above, tl'ie strike. was caused by the respondent's unlawful refusal to bargain collectively. Under these circumstances and upon the entire record, we find that the respondent, by communi- cating with the employees directly through its supervisory employees, and by stating to the employees that "we are operating tomorrow as usual and your job is open for you if you want to come in," was seeking to induce the striking employees to desert the Unions and to abandon their concerted activity. - We find that by such solicitation and, by undercutting in this manner the authority of the Unions to act as the exclusive bargaining agents of the employees in the appropriate units,29 as well as by McGowan's statements to Blackburn, Fullerton, and Hough, the respondent has interfered with, restrained, and co- °Inteinational Association of Machinists v. National Labor Relations Board, 311 U S. 72, aff'g 110 F. '(2d) 29 (App. D. C.), enf'g Matter of The Serrick Corporation and - Inter- national Union, -United Automobile TVorkers of America, Local No. 459, 8 N. L. R. B. 621 ; H. J. Heinz Co v National Labor Relations Board, 311 U. S. 514, aff'g 110 F, (2d) 843 (C. C. A 6), enf'g Matter Aof H. J. Heinz Company and Canning and Pickle Workers, Local No. 325, affiliated with Amalgamated Meat Cutters and Butcher Workmen of America, American Federation of Labor, 10 N L R. B. 963 29 See footnote 25, supra. - 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7 of the Act. ^e of the rights guaranteed in Section IV. THE EFFECT OF THE UNFAIR , LABOR PRACTICES UPON COMMERCE The- activities' of the respondent set forth in Section III above, occurring in connection with the operations of the respondent de- scribed in Section I ' above, have a close, intimate, and substantial relation to trade, traffic, and commerce'among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act and to restore as nearly as possible the conditions which existed prior to the commission of the unfair labor practices. Having found that the respondent has refused to bargain collec- tively with the Retail Clerks and the Warehousemen, we shall order that the respondent , upon request, bargain collectively with the Unions and, if understandings are reached, embody such understandings in signed agreements. We have found that the unfair labor practices of the respondent caused and prolonged the strike which began on December 7, 1940. In order to restore the status quo as existed prior to the time the respond- ent committed the unfair labor practices, we shall order the respondent (1) to offer reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, to those employees who went on strike on December 7, 1940, or thereafter, and who have applied for and have not been offered rein- statement, and (2 ) upon application to offer reinstatement to their former or substantially equivalent positions , without prejudice to their seniority and other rights and privileges, to those employees who went on strike on said date, or thereafter, and who have not previously applied for reinstatement; dismissing if necessary any persons hired by the respondent after December 7, 1940, the date of the strike, and not in the employ of the respondent on said date . If thereupon, because of a reduction in force, there is not sufficient employment available for the employees to be offered reinstatement , all available positions shall be distributed among all employees , without discrim- ination against any employee because of his union affiliation or activ- ities, following such a system of seniority or other non-discriminatory practice to such extent as has-heretofore been applied in the conduct of the respondent's business. Those employees, if any, remaining MONTGOMERY WARD & COMPANY 1,29 after such distribution, for whom no employment is immediately avail- able, shall be placed upon a preferential list and offered employment in, their former or substantially equivalent positions as such employ- ment becomes available and before other persons are'hired for such work, in the order determined among them by such system of seniority or other non-discriminatory practice as has heretofore been -followed by the respondent. We shall order the respondent to make whole those employees who went on strike December 7, 1940, or thereafter, and who have applied for and have not been offered reinstatement, for any loss of pay they may have suffered by reason of the respondent's refusal, if any, to reinstate them, by payment to each of them of a sum,of money equal to that which he would normally have, earned as wages during the period from five (5) days after the date on which lie applied for rein- statement to the date of the respondent's- offer of reinstatement or placement upon it preferential list, less his net -earnings,30- if any, during such period. We shall also order the respondent to, make whole those employees who went out on stilike-on December 7, 1940, or thereafter, and who have not' previously applied for reinstatement for any loss of pay they may suffer by reason of the respondent's refusal, if any, to reinstate them, as provided above, by payment to each o f,tlieni of a sum of money equal to that which lie would normally have earned as wages during the period from five (5) days after the date on which he applied for reinstatement to the date of the respond- ent's offer of reinstatement or placement on a preferential list, less his net earnings, if any, during such period. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. Warehousemen's Union , Local No. 206 , chartered by International Brotherhood of Teamsters, Ch,auffeui;s, Stablemen and Helpers of America , and Retail Clerks' International Protective Association, Local N o. 1257, both affiliated with the American Federation of Labor, are labor organizations, within the meaning of Section 2 (5) of the Act. 2. All merchandise checkers in the shipping department; all receiving clerks in the receiving department ; all- employees on the 30 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for the respondent's discrimination against him and the consequent necessity of his seeking employment else- where See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Saw null Workers Unionl, Local 2590, 8 N. L R B. 440 'Mon ea i et dived for work performed upon Federal, State, county, municipal, or other work-relief projects shall be considered as earnings See Republic Steel Corporation v. N. L R B, 311 U S 7 130 DECISIONS •OF NATIONAL LABOR 'RELATIONS BOARD freight elevators ; all sorters, completers , and packers, but not billers in the packing and billing department ; all employees of the package- opening department except authenticators ; all employees of the cen- tral-repair unit except those engaged in office work; all employees in the jewelry-repair unit engaged in handling merchandise , except watchmakers ; all employees in the merchandise division except time- keepers and employees engaged in taking orders ; all employees in the supply and multigraph department who fill in and-stock -supplies, all employees who handle merchandise in the operating auditing, stock- control, and catalog-service departments ; all porters ; and all em- ployees at "the warehouse, excluding supervisory employees, have at all times material herein constituted and now constitute a unit appro- priate for the purposes of collective bargaining , within the meaning of Section 9 (b) of the Act. '3. Warehousemen 's Union, Local No. 206 , chartered by Interna- tional Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers ,of America, is and at all times since August 10, 1940, has been the exclusive representative of all the employees in such unit for the purposes of collective bargaining , within the meaning of Section 9 (a) of the Act. 4. All retail clerks engaged in handling or selling merchandise, including display helpers, tire mounters, stock men, order fillers, markers, messengers , outside salesmen, and floor cashiers , exclusive of supervisory employees , have at all times material herein consti- tuted and now constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 5. Retail Clerks' International Protective Association, Local No. 1257, is and at all times since August 6, 1940 , has been the exclusive representative of all the employees in such unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. .6. By refusing to bargain collectively with Warehousemen 's Union Local No. 206, chartered by the International Brotherhood of Team- sters, Chauffeurs, Stablemen and Helpers of America , and Retail Clerks' International Protective Association, Local No. 1257, respec- tively, as the exclusive representatives of its employees in the respec- tive appropriate units, the respondent has engaged in and is engaging in' unfair labor practices, within ' the meaning of Section 8 (5) of the Act. 7. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 ( 1) of the Act.' 8. The aforesaid labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. MONTGOMERY, WARD & COMPANY 131 ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Montgomery Ward &; Company,' Portland, Oregon, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Warehousemen's Union, -Local No. 206, chartered by International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, as the exclusive rep- resentative of all merchandise checkers in the shipping, department; all receiving clerks in the receiving department; all employees on the freight elevators; all sorters, completers, and packers, but not billers in the packing and billing department; all employees of the package- opening department except;authenticators; all employees of the cen- tral-repair unit except those engaged in, office work; all employees in the jewelry-repair unit engaged in handling merchandise, except watchmakers; all employees in the merchandise division except time- keepers and employees engaged in taking orders; all employees in the supply and multigraph department who fill in and stock supplies; all employees who handle merchandise in the operating auditing, stock- control, and catalog-service departments; all porters; and all em- ployees at the warehouse, excluding supervisory employees; (b) Refusing to bargain collectively with Retail Clerks' Interna- tional Protective Association, Local No. 1257, as the exclusive repre- sentative of all retail clerks engaged in handling or selling merchandise, including display helpers, tire mounters, stock men, order fillers, markers, messengers, outside salesmen, and floor cashiers, exclusive of supervisory employees; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Offer to those employees who went on strike on December 7, 1940, or thereafter, and who have applied for and have not been offered reinstatement, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority_or other rights and privileges, in the manner provided in the section entitled "The Remedy" above; and place those em- 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees for whom employment. is not immediately available upon a preferential list in the manner set forth in said section, and there- after, in said manner, offer them employment as it becomes available; (b) Upon application offer to those employees who went on strike ,on December 7, 1940, or thereafter, and who have not previously applied for reinstatement, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, in the manner provided in the section entitled "The Remedy" above; and place those em- ployees for whom employment is not immediately available upon a preferential list in the manner set forth in said section, and there- after, in, said manner, offer them employment as it becomes available; (c) Make whole the employees specified in paragraph 2 (a) above, for any loss of pay they may have suffered by reason of the respond- _ent's refusal, if any, to reinstate them, by payment to each of them of a sum of money equal to that which he would normally have earned as wages, during the period from five (5) days after the date on which he applied for reinstatement to the date of the respondent's offer of reinstatement or placement upon a preferential list, less his net earnings, if any, during said period; (d) Make whole the employees specified in paragraph 2 (b) above, for any loss of pay they may suffer by reason of the respondent's refusal, if any, to reinstate them pursuant to paragraph 2 (b) above, by payment, to each of them of a sum of money equal to that which he would normally have earned as wages, during the period from five (5) days after the date on which he applies for reinstatement to the date of the respondent's offer of reinstatement or placement upon a preferential list, less his net earnings, if any, during said period; (e) Upon request, bargain collectively with Warehousemen's Union, Local No. 206, chartered by International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, as the exclusive representative of all merchandise checkers in the shipping depart- ment; all receiving clerks in the receiving department; all employees on the freight elevators; all sorters, completers, and packers, but not 'billers in the packing and billing department; all employees in the package-opening department except authenticators; all employees of the central-repair unit except those engaged in office work; all em- ployees in the jewelry-repair unit engaged in handling merchandise, except watchmakers; all employees in the merchandise division ex- cept timekeepers and employees engaged in taking orders; all em- ployees in the supply and multigraph department who fill in and stock supplies; all employees who handle merchandise in the operat- ' big auditing, stock-control, and catalog-service departments; all 'porters; and all employees at the warehouse, excluding supervisory 6 MONYfGOMERY WARD & COMPANY 133 employees, with respect to rates of pay. wages, hours of employment, and other conditions of employment, and, if an understanding is reached on any such matters, upon request embody such understanding in a signed agreement; (f) Upon request, bargain collectively with Retail Clerks' Inter- national Protective Association, Local No. 1257, as the exclusive representative of all retail clerks engaged in handling or selling mer- chandise, including display helpers, tire mounters, stock men, order fillers, markers, messengers, outside salesmen, and floor cashiers, exclusive of supervisory employees, with respect to rates of pay, wages, hours of employment, and other conditions of employment, .and, if an understanding is reached on any such matters, upon request embody such understanding in a signed agreement; (g) Post imii ediately in conspicuous places in its Portland, Ore- gon, plant, and maintain for a period of not less than sixty (60) consecutive clays from the date of posting, notices to its employees stating : (1) -that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), and (c).of this Order; and (2) that the respondent will take the affirma- tive action set forth in paragraphs 2 (a), (b), (c), (d), (e), and (f) of this Order,; (h) Notify the Regional Director for the Nineteenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. MR. GERARD D. RFiLLY took no part in the, consideration of the above Decision and Order. 433257-42-vOL 37-10