Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

Sep 10, 1946

70 N.L.R.B. 1302 (N.L.R.B. 1946)

In the'Matter of MONTGOMERY WARD & Co., INCORPORATED , EMPLOYER
and RETAIL CLERKS INTERNATIONAL PROTECTIVE ASSOCIATION,
A. F. L., PETITIONER
Case No. 3-R-1045.-Decided September 10,19.46
Mr. D. M. Norton , of Chicago , Ill., for the Employer.
Mr. Harold P . Smith, of Binghamton , N. Y., for the Petitioner.
Mr. Martin T. Carnacho , of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Bing-
hamton, New York, on July 12, 1946, before Philip Licari, Trial Ex-
aminer. The -Trial Examiner 's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board. makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Montgomery Ward & Co., Incorporated, is an Illinois corporation
with its principal office in Chicago, Illinois. It is engaged in the sale
and distribution of merchandise throughout the United States, through"
the media of mail order houses and retail stores. This proceeding in-
volves the Employer's retail store in Binghamton, New York. , During
1945, the Binghamton store sold approximately $1,204,000, worth of
merchandise of which at least $75,000, represented merchandise sold
and shipped by mail or by interstate carriers. During the same period,
the Binghamton retail store received approximately 65 percent of its
merchandise from points located outside the State of New York.
We find that the Employer is engaged in commerce within the
meaning of the National Labor, Relations Act.
II. THE ORGANIZATION INVOLVED
The Petitioner is a labor organization affiliated with the American
Federation of Labor, claiming-to represent employees of the Employer.
70 N. L. R. B., No. 125.
1302
MONTGOMERY WARD & CO., INCORPORATED
III. THE QUESTION CONCERNING REPRESENTATION
1303
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of The Employer until the
Petitioner has been certified by the Board in an appropriate unit.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Petitioner seeks a unit comprising all employees of the Em-
ployer at its retail store in Binghamton, New York, excluding man-
ager, assistant managers, secretaries, department heads, service clerks,
and employees in the time payment department, cashier's department,
and general office. The Employer, while agreeing generally with the
composition of the Petitioner's proposed 'unit, urges that the cate-
gories of employees discussed below should also be included.
Secretaries, service clerks, employees in the time payment department,
cashier's department, and general office
The group of 'employees whom the Petitioner would include in -its
unit consists of selling and maintenance personnel. The group whom
it would exclude comprises, with the exception of department heads,
office and clerical employees. Both groups function under the same
general supervision and under similar working conditions. When
the need exists, there is interchange on a temporary basis between
the selling and clerical personnel. In other cases involving stores
similar to the one involved in this proceeding, the Board has held that
there is a strong community of interest between the selling and cler-
ical employees and-has included both classifications in the same unit.'
The Petitioner objects to the inclusion of the clerical employees in this
case on the ground that its jurisdiction does not extend to such em-
ployees and that it has made no attempt to organize them 2 No other
union, so far as appears from the record, is attempting to organize
the clerical employees.3 Under these circumstances, we believe that,
as-factors in determining the appropriateness of the unit, the bond of
mutual interest between the selling and clerical employees outweighs
the Petitioner's alleged` jurisdictional inability to represent the cleri-
cal employees. We shall, therefore, include the office and clerical
employees in the unit. -
i Matter of Sears, Roebuck and Co., 66 N . L R B 285 Matter of Montgomery Ward &
Co., Incorporated , 64 N. L. It. B. 674 ; Matter of Montgomery Ward & Co., Incorporated,
53 N L R. B 1300
2 We note that in the Sears, Roebuck case, supra , the Petitioner sought to include in the
same unit `both ' sales and clerical personnel
I Cf. J. L Brandeis & Sons, 50 N L. R B 325
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Department heads
There are approximately 25 department heads, each of whom is
in charge of a department and directs the work of 1 or more em-
ployees.4 Each department head is responsible for the appearance
and upkeep of his department, the maintenance of adequate inven-
tory, the keeping of proper records- of sales and receipts of merchan-
dise, the disposition of subordinate personnel, and the reporting of
dereliction of duty by subordinates to the store manager .5 In pre-'
vious cases involving other stores, of the Employer, we excluded
from units of sales and clerical personnel, department heads having
authority and responsibility similar to those involved in the present
proceeding.6 In accord with those decisions, we shall exclude the
department heads. -
We find that all employees of the Employer at its retail store in
Binghamton, New York, including secretaries, service clerks, and
employees in the time payment department, cashier's department and
general office, but excluding manager, assistant managers, depart-
ment heads, and all other supervisory -employees with authority to
hire, promote, discharge, discipline, or otherwise effect changes in
the status of employees, or effectively recommend such action, con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Montgomery Ward & Co., In-
corporated, Binghamton, New York, an election by secret ballot shall
be conducted as early as possible, but not later than thirty (30) days
from the date of this Direction, under the direction and supervision
of the Regional Director for the Third Region, acting in this matter
as agent for the National Labor Relations Board, and subject to
Article III, Sections 10 and 11, of National Labor Relations Board
Rules and Regulations-Series 3, as amended, among the employees
in the unit found appropriate in Section IV, above, who were em-
ployed during-the pay-roll period immediately preceding the date
4 There are approximately four department heads who do not have subordinates at the
present time . However , the y are assigned subordinates from time to time during the year
as business conditions require All department heads have the same authority and
responsibility.
s The above description applies to heads of selling departments . Several of the depart-
ment heads are in charge of non -selling departments However, the authority and re-
sponsibility of both groups of del$artment heads are apparently the same, although their
duties may vary' All department heads are excluded from the unit found appropriate
herein
6 Matter of Montgomery Ward & Co., Incorporated , 64 N. L R B. 674 ; Matter of Mont-
gomery Ward d Co , Incorporated , 53 N L . R. B 1300 S -
MONTGOMERY WARD & CO., INCORPORATED 1305
of this Direction, including employees who did not work during said
pay-roll period because they were ill or on vacation or temporarily
laid off, and including employees in the armed forces of the United
States who present themselves in person at the polls, but excluding
those employees who have since quit or been discharged for cause and
have not been rehired or reinstated prior to the date of the election,
to determine whether or not they desire to be represented by Retail
Clerks International Protective Association, A. F. L., for the pur-
poses of collective bargaining. _ .
MR. JAMES J. REYNOLDS , JR., took no part in the consideration of
the above Decision and Direction of Election.