Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

May 28, 1946

68 N.L.R.B. 369 (N.L.R.B. 1946)

In the Matter of MONTGOMERY WARD & CO., INCORPORATED, HUMMER
MANUFACTURING COMPANY, SPRINGFIELD, ILLINOIS and UNITED
STEELWORKERS OF AMERICA, CIO
Case No. 13-R-3341.-Decided May 28, 1946
Mr. D. M. Norton, of Chicago, Ill., for the Company.
Mr. Arthur J. Goldberg, of Chicago, Ill., and Messrs. Joe Winoski,
and Jack Glasgow, of Springfield, Ill., for the CIO.
Mr. E. J. Reid, of Chicago, I11., for the Lodge.
Mr. Hyman H. Ostrin, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a petition duly filed by United Steelworkers of America, CIO,
herein called the CIO, alleging that a question affecting commerce
had arisen concerning the representation of employees of Montgomery
Ward & Co., Incorporated, Hummer Manufacturing Company, Spring-
field, Illinois, herein called the Company, the National Labor Relations
Board provided for an appropriate hearing upon due notice before Robert
Ackerberg, Trial Examiner. The hearing was held at Springfield, Illinois,
on April 15, 1946. The Company, the CIO, and International As-
sociation of Machinists, Lodge No. 628, herein called the Lodge, ap-
peared and participated. All parties were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues. At the hearing the Lodge moved to dismiss
the petition on the ground that its contract with the Company was a bar
to the present determination of representatives. The Trial Examiner re-
served ruling on this motion for the Board. For reasons hereinafter
stated, the motion is hereby granted. The Trial Examiner's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed. All parties were afforded full opportunity to file briefs with
the Board.
68 N L R. B, No. 42.
369
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
Montgomery Ward & Co., Incorporated, an Illinois corporation with
principal offices at Chicago, Illinois, in addition to its large mail order
and retail business, operates a branch factory known as Hummer Manu-
facturing Company at Springfield, Illinois This proceeding concerns
exclusively the representation of employees at the Hummer plant, where
the Company designs and manufactures cream separators, hammer mills,
and water systems. During the year 1945, the Company purchased ap-
proximately $655,875 worth of materials, about 35 percent of which rep-
resented shipments to the Hummer plant from points outside the State
of Illinois. During the same period the Company manufactured at the
same plant products valued at $2,600,000, about 93 percent of which
represented shipments by it to points outside the State.
We find that the Company is engaged in commerce within the meaning
of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
United Steelworkers of America is a labor organization, affiliated with
the Congress of Industrial Organizations, admitting to membership
employees of the Company.
International Association of Machinists, Lodge No. 628, is a labor or-
ganization, admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On September 16, 1944, the Company and the Lodge entered into a
contract covering the employees here involved. The contract provided
that it was to "remain in force from September 16, 1944 and thereafter
from year to year unless either party gives written notice to the other
at least thirty (30) days prior to the termination date that it does not
wish to continue the agreement ; provided, however, that either party
may at any time after the date hereof terminate or renegotiate Article
I or Article III by giving thirty (30) days written notice of such ter-
mination or desire to renegotiate to the other party." On September
4, 1945, less than 30 days before the first anniversary date of the con-
tract, the CIO requested the Company to recognize it as the collective
bargaining representative of the Company's employees. The Company
I Article I pertains to working hours, and Article II to rates of pay.
MONTGOMERY WARD & Co , INCORPORATED 371
refused to accede to the CIO's request because of its contract with the
Lodge. The CIO then filed its petition with the Board on October 20,
1945.
Both the Company and the Lodge contend that their contract is a
bar to this proceeding. The CIO, however, contends that the agree-
ment is not a bar because it was improperly executed by the Lodge ; was
not properly ratified by the membership of the Lodge; was repudiated
by the Lodge shortly after its execution; failed to incorporate the terms
of outstanding War Labor Board directives; and is of indefinite dura-
tion. As a further reason for conducting an election on the present peti-
tion it argues that the Lodge has ceased to function as a labor organiza-
tion.
We find no merit in any of the CIO's contentions. With respect to
the execution of the contract, the CIO contends that because only
three of the five members of the local bargaining committee signed the
agreement, the instrument is invalid. However, in the absence of any
provision in the contract requiring such approval, and because it is not
shown that the constitution of the Lodge requires approval of the con-
tract by all the members of the bargaining committee, it must be assumed,
as we do, that the signing of the agreement by a majority of the local
bargaining committee and by the Grand Lodge representative constitutes
a valid execution of the contract.2
As to the ratification of the contract itself, the CIO argues that
because the agreement was ratified at a meeting attended by non-union
as well as union employees the ratification was improper. However, in-
asmuch as there is no showing that the non-union members were actually
responsible for such ratification, and, in the absence of proof that ratifi-
cation of the agreement was a condition precedent to its valid execu-
tion, we find this contention untenable.
Nor do we perceive any basis for finding, as the CIO contends,
that the contract was repudiated by the Lodge shortly after its execu-
tion. There was evidence that, shortly after the execution of the agree-
ment, two meetings of the Lodge were held at which the membership
present voted to repudiate the contract. However, this repudiation never
became effective. Both parties to the agreement continued to adhere to
its terms. On March 14, 1945, after the alleged repudiation, the Com-
pany and the Lodge executed an amendment to the contract covering a
change in wage rates. This amendment was signed by a representative
of the Grand Lodge and by four of the five members of the bargaining
committee. Obviously, therefore, neither party considered the attempted
repudiation as having taken effect.
As noted above the CIO also points to the fact that the contract as
finally executed did not incorporate the terms of outstanding War Labor
a See Matter of Bird & Son (Carton Container and Paper Division), 53 N. L. R. B. 717.
696966-46--25
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board directives and argues that the contract should therefore not be
held a bar to this proceeding. This position is patently lacking in merit.
The incorporation of any specific terms in a contract is a matter of con-
cern only to the contracting parties. Indeed, the record shows that the
War Labor Board approved the present contract after reducing some of
the wage rates, notwithstanding the failure to incorporate the provisions
of its earlier directives.
We are also unable to agree with the CIO's assertion that the con-
tract is one of indefinite duration and therefore does not, under well
established principles of the Board, prevent an election at this time. An
examination of the contract and particularly the language in the duration
clause itself, as quoted above, makes it apparent that the contract is for
an initial term of 1 year, renewable automatically from year to year
thereafter unless either party serves notice of termination 30 days prior
to any anniversary date.
Nor can we concur with the CIO's final position that the Lodge has
ceased to function as a labor organization. The CIO relies, in this
connection, on the fact that the evidence shows that the Lodge's present
membership among the Company's employees is small,3 and that the
Lodge has not used the Company's bulletin boards to post union an-
nouncements for 8 months preceding the hearing. Although the evidence
tends to show a sharp decline in the Lodge's membership among the
employees here involved, and a lessening of activity in certain respects,
it has not established that the Lodge is defunct or otherwise incapable
of administering the contract. Thus a company witness testified without
contradiction that 42 grievance meetings had been held since the date
of the execution of the contract; that 24 of these meetings were held
subsequent to May 7, 1945; and that the most recent one was held on
March 7, 1946.4 The witness further testified that in November and
December 1945, meetings between the Company and representatives of the
Lodge were held for the purpose of adjusting wage rates; and that as a
result certain adjustments were put into effect. We find, on the basis
of these facts that the Lodge is unquestionably a functioning labor or-
ganization and that it has continued to administer the contract.,,
Accordingly, under all the circumstances of the case and on the basis
of the entire record, we find that the contract which was automatically
renewed in 1945 until September 16, 1946, is a bar to a present deter-
mination of representatives. We shall therefore dismiss the petition with-
8 A witness for the CIO, until recently a trustee of the Lodge, put the latter's present
membership among the Company's employees as of the date of his resignation at about 18 or 20
out of a total of 390 employees in the unit
4 Some of these meetings were attended by individual employees prosecuting their own
grievances as provided by the contract.
See Matter of The Ellis Canning Company, 67 N. L. R. B. 384; Matter of Douglass Public
Service Corporation, 62 N. L. R B. 651; Matter of Elwood Machine & Tool Company, 61
N. L. R. B. 1618; Matter of White Brothers Smelting Corporation, 61 N. L. R. B. 340.
MONTGOMERY WARD & CO., INCORPORATED 373
out prejudice to the CIO's right to file a new petition within a reason-
able time before September 16, 1946.
ORDER
Upon the basis of the foregoing findings of fact and upon the entire
record in this case, the National Labor Relations Board hereby orders
that the petition for investigation and certification of representatives of
employees of Montgomery Ward & Co., Incorporated, Hummer Manu-
facturing Company, Springfield, Illinois, filed by United Steelworkers
of America, CIO, be, and it hereby is, dismissed.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.