National Labor Rel. Board v. Montgomery Ward & Co.

• Decision Date: 15 February 1943
• Docket Number: No. 10108.,10108.
• Citation: 133 F.2d 676
• Parties: NATIONAL LABOR RELATIONS BOARD v. MONTGOMERY WARD & CO. MONTGOMERY WARD & CO. v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Ninth Circuit

133 F.2d 676 (1943)

NATIONAL LABOR RELATIONS BOARD v. MONTGOMERY WARD & CO.

MONTGOMERY WARD & CO. v. NATIONAL LABOR RELATIONS BOARD.

No. 10108.

Circuit Court of Appeals, Ninth Circuit.

February 15, 1943.

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Robert B. Watts, Gen. Counsel, Ernest A. Gross, Associate Gen. Counsel, Gerhard P. Van Arkel, Asst. Gen. Counsel, and Morris P. Glushien, Owsley Vose, John H. Garver and Maurice J. Nicoson, all of Washington, D. C., for National Labor Relations Board.

Stuart S. Ball, of Chicago, Ill., for Montgomery Ward & Co.

Before GARRECHT, HANEY, and HEALY, Circuit Judges.

GARRECHT, Circuit Judge.

Montgomery Ward & Company, herein referred to as "Wards", is an Illinois corporation, having its principal offices in Chicago, Illinois. At the time of the Labor Board hearing it operated, in its business of selling merchandise at retail, nine mail order houses, 650 retail stores, and 206 mail order sales units, in various cities and towns in the United States. In Portland, Oregon, Wards operated a mail order house and a retail store. Approximately ninety per cent. of the merchandise distributed by the Portland establishments was shipped to Portland from states outside the state of Oregon; about 60 per cent. of the customers of the Portland mail order house live outside of the state of Oregon, and a substantial part of the goods distributed by said house are shipped out of the state of Oregon. A small portion of the goods sold by the retail store is shipped or delivered outside the state of Oregon. At the time of hearing (or prior to the strike then in progress) Wards employed about 1200 persons in the mail order house and 175 persons in the retail store. The mail order house and the retail store each had a separate local manager.

The powers of the National Labor Relations Board were called upon by separate charges filed with the Board by two unions, which alleged that Montgomery Ward & Co. was engaging in unfair labor practices within the meaning of the National Labor Relations Act (of July 5, 1935, 49 Stat. 449-457, 29 U.S.C.A. § 151, et seq.) The two unions were the Warehousemen's Union, Local No. 206, of Portland, Oregon, and the Retail Clerks' International Protective Association, Local No. 1257, also of Portland, both affiliated with the American Federation of Labor. A third union, the Office Employees Union No. 16821, also of the city of Portland and an American Federation of Labor affiliate, was rather indirectly concerned, although it was not named in the "charges" filed. This union had notified Wards that the Retail Clerks' union was empowered to bargain for it, and negotiations between Wards and the Retail Clerks proceeded on that basis.

Each of the "charges" filed with the Board alleged that Wards refused to negotiate or bargain in good faith with the named union despite the fact that the Warehousemen had been certified as the collective bargaining union for all warehouse employees of Wards, that Clerks represented "an overwhelming majority of the retail clerks employed" by Wards. By an order of the Board, dated March 28, 1941, the two charges were consolidated for further proceedings before it. Subsequently, on March 31, 1941, the Board issued its complaint against Montgomery Ward & Co., as respondent, reciting that charges of unfair labor practices had been preferred by the above two unions, alleging the classification of the employees going to make up the two bargaining units and that Warehousemen and Clerks were the respective bargaining representatives. The complaint then went on to allege that Wards had "refused to bargain collectively in good faith" with the two named unions; that as a result thereof the unions did, on or about December 7, 1940, call a strike against, and establish picket lines about the premises of, respondent; that the strike had continued in existence since that time to the date of issuance of the complaint; that by refusing to bargain in good faith with, and in its refusal to submit counter proposals to, the unions, Wards thereby engaged in unfair labor practices within the meaning of the Act; that by the refusal to bargain and other acts, Wards interfered with, restrained, and coerced its employees in the exercise of their rights to organize and bargain collectively through representatives of their own choosing, etc.; that Wards' activities in this regard have a relation to interstate commerce, and have led to, and tend to lead to, a burden thereon or obstruction thereof. In conclusion the complaint alleged that the acts therein recited constituted unfair labor practices affecting commerce within the meaning of Section 8(1) and 8(5) and Section 2(6) and 2(7) of the said Labor Relations Act. Notice of hearing issued on the same day as the complaint, and thereafter Wards filed its answer. In the answer, Wards denied all the essential allegations of the complaint, and alleged that the picket lines were established solely because of its refusal to agree to a "union shop" or "closed shop" clause proposed by the unions. A hearing was had in Portland, Oregon, which produced a rather lengthy transcript of record. Following the hearing, the trial examiner presented an intermediate report in favor of the unions and against Wards, and, thereafter, Wards filed exceptions to said report and a brief in support of its position. An oral argument was then presented to the Board by its and Wards' counsel. Later, the Board filed its findings and conclusions in the form of an opinion.

All issues were resolved in favor of the unions and against Wards, and the latter was ordered to cease and desist from "Refusing to bargain collectively with" the unions and also to cease and desist from in "any other manner interfering with, restraining, or coercing its employees in the exercise of the right of self-organization, * * * to bargain collectively", etc. The order also required Wards to take affirmative action in the matter of reinstatement and making whole for loss of pay those employees who went on strike on December 7, 1940, or thereafter, and to bargain collectively with the unions with respect to rates of pay, wages, hours, and other conditions of employment, and to post notices that it will cease and desist from the proscribed conduct.

The Board petitions this court for enforcement of its order against Wards, and the latter cross-petitions "for review and to set aside" the said order.

In the consideration of the problem here before us two issues are presented, namely, (1) whether Wards was guilty of refusing to bargain collectively in good faith and (2) whether Wards was guilty of coercion subsequent to the calling of the strike on December 7, 1940. The latter problem is the simpler and we shall dispose of it first.

Coercion.

On this question there is a substantial disagreement on the facts; the Board's witnesses testified to facts which would give rise to an inference that Wards, subsequent to the calling of the strike on December 7, 1940, attempted, by means of threats, to coerce certain employees to return to their work; Wards' witnesses denied that such tactics were used. After a careful study of the evidence in the record on this question we are impelled to observe that the testimony for both sides is, to say the least, unsatisfactory. The Board chose to believe its own witnesses; and this being one of its prerogatives under the law ("The findings of the Board as to the facts, if supported by evidence, shall be conclusive." § 10(c) L.R.Act), we must proceed on that understanding.

On this question, the Board found that on Sunday, December 8, 1940, the day following the commencement of the strike at Portland, one Robinson, who was superintendent of operations of Wards' mail order house there, called together the operating superintendents of each floor, handed each a list of names and telephone numbers of employees who worked under them, and instructed the superintendents to convey to the employees a message. The message, and the written instructions thereon, read 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 employee'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 answering 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.)"

It was further found by the Board that Wards' supervisory employees, following instructions, transmitted this message to the listed employees, but that one McGowan went beyond his instructions. It appears from such findings that three employees testified respecting McGowan's activities. One of them, Blackburn, a woman, said she called McGowan by telephone to advise him that she had not been to work on the first day of the strike because she did not want to cross the picket line. This woman testified that McGowan told her it was not necessary that she cross the picket line, but that she could enter the premises by the back way; she also said he told her to advise her fellow employees that if they were not present on Monday morning they would be replaced. One Fullerton stated that during the week following the commencement of the strike McGowan and his wife called at Fullerton's home and that McGowan told the witness he was making a friendly call and advising those whom he could trust that if they did not return by a certain date their jobs...