Montgomery Ward & Co.

1 n the Matter ' of MONTGOMERY WARD & COMPANY and RETAIL CLERKS INTERNATIONAL PROTECTIVE ASSOCIATION, LOCAL 283, AFFILI- ATED WITH THE AMERICAN FEDERATION OF LABOR Case No. B-3398.-Decided January 16 , 1942° Jurisdiction : retail and mail-order merchandising industry. Investigation and Certification of Representatives : existence of question. re fusal to accord union recognition until certified, by the Board ; agreement that a question concerning representation''has arisen ; election necessary. Unit Appropriate for Collective Bargaining : all employees-of the Company it its Wichita, Kansas, retail store, exclusive of supervisors, the manager's private secretary, the credit manager, the personnel training supervisor, and temporary employees working less than thirty,, hours, a week; regular employees working less than thirty hours a week included, notwithstanding desire of the Union for their exclusion Mr. -E. K. Koppleman, of Wichita, Kans.. and Mr. W. F., Crow, of Wichita, Kans., for the Union. Mr. Brooks Wynnze., of Chicago, Ill., for the Company. Mr. J. Benson. Saks, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT' OF' THE CASE On October 30, 1941, Retail Clerks International Protective Asso- ciation, Local 283, affiliated with the American Federation of Labor, herein called ' the' Union, filed with the Regional Director for the Seventeenth' Region (Kansas City, Missouri) a petition, • and on November 8, 1941, an amended • petition, alleging ^ that a -question affecting commerce had arisen 'concerning the representation of em- ployees of Montgomery `hard and Company, Wichita, Kansas, herein called the Company, and, requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On December 8, 1941, the National Labor Relations Board, herein' called the 'Board, acting pursuant to Section 9 (c) of'the Act and Article III, Section 38 N L: R.'B', -No: 70. - 340 , • MONTGOMERY WARD & COMPANY 341 of National Labor Relations Board Rules and Regulations-Series, 2, as amended, ordered an investigation and authorized ,the, Regional Director. to conduct it and to provide for .an appropriate hearing upon due notice. . On December 12, 1941, the Regional Director issued a notice of hear- ing, copies of which were duly. served upon the Company and the Union. Pursuant to notice, a hearing was held on December 18, 1941, at Wichita, Kansas, before Paul Nachtman, the Trial Examiner duly designated by the Chief Trial Examiner. The Company was repre- sented by counsel and the Union by its representatives; both partici- pated 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 course of the hearing, the Trial Examiner made several rulings on motions and''on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that 'no prejudicial errors were committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS' OF FACT 1. THE BUSINESS OF THE COMPANY ' The Company is engaged in retail and mail-order merchandising. The present controversy involves its retail store at Wichita, Kansas. Approximately 90 percent of the merchandise sold and distributed by the store originates outside the State of Kansas. The net' sales of the store in the year ending January 31, 1941, approximated $1,300,- 000. Of this amount about one-half of one percent involved deliveries to customers outside the State of Kansas. II. THE ORGANIZATION INVOLVED Retail Clerks International Protective Association, Local 283, affiliated with the American Federation of Labor, is 'a labor organi- zation admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Union and the Company agi'ee that a question concerning representation has arisen. The Company''through' its attorney in- formed the Union on or about October 22, 1941, that it would bargain collectively with the Union if it were certified by the Board. A report of 'the Acting Regional'Director'of the Board shows that the 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union represents a substantial number of employees in the appropriate unit.' We find that a question has arisen' concerning the representatioii of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several- States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT Except as noted below, the parties agree that all employees at the store; excluding supervisors, constitute an appropriate unit. The Union contends that the manager's private secretary, the credit man- ager, the personnel training supervisor, and employees working less than 30 hours a week, should be excluded from the unit. The Com- pany asserts that their inclusion will produce "harmony." The Manager's Private'Secretart: She is a confidential employee; and is closely identified with the management. Accordingly, we find that the manager's private secretary should be excluded from the appropriate unit. The Credit Manager: He is a supervisory employee with authority to discharge, subject to the approval of the store manager. We find that the credit manager is not within the appropriate unit. The Personnel Training Supervisor: The nature of her work is supervisory. She has the power to hire and fire in collaboration with the store manager. We shall exclude her from the appropriate unit. Employees working less than 30 hours a week: These employees, who are considered part-time employees, are not permitted to join the Union.. It is urged on behalf of the Union ' The Acting Regional Director reports that the Union submitted to him 86 application cards, 77 of which bear dates from August through October 1941, an additional 7 cards which bear no year dates , one additional card which is completely undated , and one which is a duplicate ; that all the signatures appear to be genuine ; and that 75 of the signatures are names of persons appearing on the Company 's pay roll of November 13, 1941. The store employed a total of about 212 persons as of this date. MONTGOMERY WARD & COMPANY 343 that the problems confronting part-time employees are different from those applicable to full-time employees. The Company asserts that the working conditions of part-time employees are the same as those of the full-time employees and that their wages are computed on a basis similar to that used for the full-time employees. Upon the entire record, we find that part-time employees regularly employed by the Company should be included in, and that part-time employees who are employed only temporarily should be excluded from, the appropriate unit. - We find that all employees of the Company at its Wichita, Kansas, store exclusive of supervisors, the manager's private secretary, the credit manager, the personnel training supervisor, and temporary employees working less than 30 hours a week, constitute a unit ap- propriate for purposes of collective bargaining and that such unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. We shall direct that -those eligible to vote shall be the employees in the appropriate unit whose names appear upon the Company's pay roll immediately preceding the date of our Direction of Election, subject to such limitations and additions as are set forth in the Direction. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Montgomery Ward and Company, Wichita, Kansas, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All employees of the Company at its Wichita, Kansas, store exclusive of supervisors, the manager's private secretary, the credit manager, the personnel-training supervisor, and temporary employees working less than 30 hours a week, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, 49 Stat. 449, and pursuant to Article III, Section_ 8, of 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Labor' Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as'part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Montgomery Ward and Company, Wichita, Kansas, an election by secret ballot shall be conducted as early as possible but not later than thirty (30) days from the date of this,Direction of Election under the direction and supervision of the Regional Director for the Seventeenth Region, acting in this matter as agent for the.National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations among all employees of the Company at its Wichita, Kansas, store, whose names appear upon the Company's pay roll immediately preceding the date of this Direction of Elec- tion, including any employees who did not work during said pay-roll period because they were ill or on vacation, or in the active military service or training of the United States and employees who were then or have since been temporarily laid off, but excluding supervisors, the manager's private secretary, the credit manager, _the personnel- training supervisor, temporary employees working less than 30 hours a week, and employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by Retail Clerks International Protective Association, Local 283, affili- ated with- the American Federation of Labor, for the purposes of collective bargaining.