Montgomery Ward & Co.

National Labor Relations Board - Board Decisions

Nov 29, 1941

37 N.L.R.B. 100 (N.L.R.B. 1941)

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