The Duluth Glass Block Store Co.

National Labor Relations Board - Board Decisions

Apr 2, 1948

76 N.L.R.B. 1064 (N.L.R.B. 1948)

In the Matter of THE DULUTH GLASS BLOCK STORE COMPANY and
RETAIL CLERKS LOCAL UNION No. 3
Case No. 18-C-1299.-Decided Ap i it 2. 1948
Mr. Stanley D. Kane, for the Board.
Holmes, Mayall, Reavil cC Neimeyer, of Duluth, Minn., by Mr.
Donald S. Holmes, and McCabe, Gruber, Clure cC Donovan, of Duluth,
Minn., by Mr. Thomas M. McCabe, for the Respondent.
Mr. Gerald W. Heaney, of Duluth, Minn ., for the Union.
DECISION
AND
ORDER
On February 20, 1947, Trial Examiner Charles E. Persons issued
his Intermediate Report in the above-entitled proceeding, finding that
the respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the In-
termediate Report attached hereto. Thereafter the respondent and
the Union each filed exceptions, with a supporting brief, to the Inter-
mediate Report. Pursuant to the provisions of Section 3 (b) of the
National Labor Relations Act, the Board has delegated its powers in
connection with this case to a three-member panel consisting of the un-
dersigned.* On January 27, 1948, the Board, at Washington, D. C.,
heard argument in which the respondent and the Union participated.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial error was committed. The rulings are hereby af-
firmed. The Board has considered the Intermediate Report, the ex-
ceptions and briefs and the entire record in the case, and hereby adopts
only those findings, conclusions, and recommendations of the Trial
Examiner which are consistent with this decision.
.Chairman Ileizog and Afembei n Revnold, and Murdock
76 N. L . R. B., No. 156.
1054
THE DULUTH GLASS BLOCK STORE COMPANY 1065
Alleged refusal to bargain
The Trial Examiner found that at all material times the Union was
the representative of a majority of the employees contained in a bar-
gaining unit consisting of all the respondent's employees, exclusive of
supervisors, employed in the selling, marking, baking, and alteration
departments.' However, we must differ with the conclusion of the
Trial Examiner that this constituted a proper unit, as it is our view
that this division failed adequately to meet any functional or other
logical test 2
In view of our conclusion that the unit was inappropriate, it is un-
necessary to consider the various actions of the respondent which the
Trial Examiner found to have constituted a refusal to bargain. We
conclude, therefore, that the respondent did not violate Section 8 (5)
of the Act.
Alleged discrimination -
Careful consideration of the entire record leads us to find, contrary
to the conclusion of the Trial Examiner, that the respondent did not
discriminate in granting a retroactive pay increase to employees not
included in the unit deemed represented by the Union, despite the
presence of some evidence tending to a contrary conclusion.
Contractual negotiations between the parties had begun at the end of
March 1946. By July 31, in consequence of negotiation and resort to
the mediation processes of the State conciliation authorities, the parties
had reached what, in effect, was full agreement. It then remained but
to reduce the agreement to final form for the parties to sign, and this,
it was arranged, should be taken care of within the next 2 days with
the formal signing of the contract to be on August 2. When Baughan,
the respondent's president, left town immediately after the July 31
bargaining conference, he gave Howze and McCabe, the respondent's
bargaining representatives, full authority to commit the respondent as
to any fringe issues that might remain. Baugiwn knew then with rea-
sonable certainty that the respondent was fully committed to payment
of the retroactive increase to the employees deemed represented by the
Union. The Union's representatives ,new it with like certainty and
knew also that it remained only for the union membership to ratify
the agreement and, in effect, agree to take the money. When Baughan,
' It may be noted incidentally that although the attorney for the Board contended that
the multiple unit included all employees working on or with the goods that the stoic had
to sell , it is evident from the record that this claim was erroneous , for candy makeis, who
are analogous to bakers, and those who made photographs for sale were excluded
2 Compare Matter of Lane Bryant, Inc , 42 N L R B 218 It appears that the parties
had agreed upon the above-mentioned unit during their negotiations however, such agree-
meut is not conclusive as to the appropriateness of a unit under the provisions of Section 9
(b) of the Act
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
before leaving town, arranged that employees not represented by the
Union likewise should receive the pay increase, he contemplated that
payment to both groups should be virtually contemporaneous and thus
that each should receive equal treatment. If, on August 2, the Union
felt that the respondent had dealt with those whom it represented less
favorably than with other employees, it had but to ratify the agreement
for which it had so earnestly contended and accept the pay increase.
Instead, it voted to reject the proffered contract, and go out on strike.'
Upon such a state of facts, we conclude that the respondent did not
discriminate against employees in the unit deemed represented by the
Union by its actions with respect to the pay increase of August 2, 1946.
Interference, restraint and coercion
We agree with the finding of the Trial Examiner with respect to the
following statements and actions of the respondent which he found
violative of the Act. The respondent interrogated employees as to
union membership and activities and solicited employees to resign
from the Union. Interfering coercively in a matter exclusively of con-
cern to union members, it told a Union member that it would not deal
thereafter with the Union's business manager, with whom it was then
negotiating for a contract, and suggested another named person as be-
ing more appropriate and acceptable to it as a union representative.
The respondent also solicited strikers to return to work, and in addi-
tion, warned them that if they did not return others would fill their
places, thereby in effect threatening them with discharge.4 In cases
where employees abandoned the strike and returned to work, the re-
spondent prescribed their resignation from the Union as part of the
procedure of reemployment. We find that by the foregoing conduct
the respondent interfered with, restrained, and coerced its employees in
violation of Section 8 (1) of the Act:S
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
3 There had been a contractual relationship between the Union and the respondent during
the years from 1936 to 1946 According to a statement of counsel made on,oral argument
before the Board , the parties have come to no agreement since the strike.
, Matter of Henry E . Spicwak, 71 N. L. It. B 770. 772 . As we noted in Matter of Cleve-
land Worsted Mills Co , 43 N . L. R B. 545, 567 , 568, and in Matter of Rockwood Stove
Works, 63 N. L . R B. 1297, it is contrary to the prohibitions of the statute for an employer
to use the threat of loss of employment as a tactic to defeat a strike.
5 The provisions of Section 8 (1) of the National Labor Relations Act, which the com-
plaint herein alleged were violated, are continued in Section 8 (a) (1) of the Act as
amended by the Labor Management Relations Act, 1947.
THE DULUTH GLASS BLOCK STORE COMPANY 1067
Board hereby orders that the respondent, The Duluth Glass Block
Store Company, and its officers, agents, successors, and assigns shall:
1. Cease and desist from interfering with, restraining, or coercing
its employees in the right to self-organization, to form labor organiza-
tions, to join or assist the Retail Clerks Local Union No. 3 or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in collective activities for the pur-
pose of collective bargaining or other mutual aid or protection, as
guaranteed by Section 7 of the Act.
2. Take the following affirmative action which, the Board finds, will
effectuate the policies of the Act :
(a) Post at its store in Duluth, Minnesota, copies of the notice
attached hereto, marked "Appendix A." 6 Copies of said notice, to
be furnished by the Regional Director for the Eighteenth Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof, and maintained
by it for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
The respondent shall take reasonable steps to insure that said notices
are not altered, defaced, or covered by any other material;
(b) Notify the Regional Director for the Eighteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges
that the respondent violated Section 8 (3) and 8 (5) of the Act, be,
and it hereby is, dismissed.
CHAIRMAN HERZCG, dissenting in part:
I agree with my colleagues' appraisal of the events preceding the
strike of August 5, 1946, and would dismiss the complaint as to them.
I also agree with so much of the majority opinion as holds that certain
conduct of the Respondent violated Section 8 (a) (1) of the Act.
It is not possible for me, however, to concur in their blanket dis-
missal of all aspects of the Section 8 (a) (5) charges on the ground
that the unit found by the Trial Examiner was inappropriate. That
was the unit, concededly not ideal, upon the basis of which the parties
conducted their negotiations and within which the Respondent itself
was fully prepared to enter an agreement. This is not a representa-
tion proceeding wherein the Board seeks to discover the best possible
unit, but a case in which the lawfulness of the parties' conduct is
' In the event that this Order is enforced by a decree of a Circuit Court of Appeals, there
shall be inserted, before the words "A Decision and Order" the words , "A Decree of the
United States Circuit Court of Appeals Enforcing"
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
being tested against a background of their own behaviour. I, think
it would therefore be more realistic to assess the appropriateness of
the unit by giving greater weight to what the parties and the Minne-
sota State Conciliator did, and less to the abstract considerations raised
by the Respondent's afterthought.
If the unit had been found appropriate by the majority, Board
precedent would require, in my opinion, that we find that the Re-
spondent's action in promulgating the Saturday closing program
unilaterally, in the face of the Union's attempts to negotiate on the
subject, constituted a violation of Section 8 (a) (5) and 8 (a) (1) of
the Act.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Libor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interfere with, restrain, or coerce our employees in
the exercise of their right to self-organization, to form labor
organizations, to join or assist RETAIL CLERKS LOCAL UNION No. 3,
or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection.
DULUTH GLASS BLOCK STORE CO_lIP ANY,
Employer.
By ------------------------------------
(Representative) (Title)
Dated ------------------------------
This notice must remain posted for 60 days from the date hereof, and
must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Stanley D, Kane, Esq, for the Board.
Holmes, Mayall, Reavil d Netmeyer, of Duluth , Minn., by Donald S. Holmes,
Esq., and McCabe, Gruber, Clare d Donovan , of Duluth , Minn., by Thomas M.
McCabe, Esq., for the Respondent.
Gerald W. Heaney, Esq., of Duluth , Minn., for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed on September 25, 1946, by Retail Clerks Local
Union No. 3, herein called the Union, the National Labor Relations Board, herein
THE DULUTH GLASS BLOCK STORE COMPANY 1069
called the Board, by its Regional Director for the Eighteenth Region ( Minneapolis,
Minnesota ), issued its complaint dated September 25, 1946, against The Duluth
Glass Block Store Company, herein called the Respondent , alleging that the
Respondent has engaged in and is engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (1), (3), and ( 5) and Section 2 (6) and
( 7) of the National Labor Relations Act, 49 Stat . 449, herein called the Act.
Copies of the complaint and notice of hearing thereon were duly served upon the
Respondent and the Union.
With respect to the unfair labor practices the complaint alleges in substance
that (l ) a unit consisting of all selling employees and all employees in the mark-
ing, alteration and bakery departments at the store , excluding supervisory
employees and all employees in other departments , constitutes a unit appropriate
for the purposes of collective bargaining ; ( 2) that on or about March 30, 1946, a
majority of the employees within this unit had designated the Union as their
representative for the purposes of collective bargaining with the Respondent;
(3) that at all times since March 30 , 1946, the Union has been the exclusive repre-
sentative of the employees in the said appropriate unit; ( 4) that on or about
May 14, 1946, and at all times thereafter the Respondent , although duly requested
by the Union to bhi rgain collectively , has refused to bargain with the Union as the
exclusive representative of all the employees in the aforesaid unit; ( 5) that on or
about July 20, 1946, the Respondent granted to all employees except selling
employees and employees in the alteration a nd bakery departments an increase in
wages and failed to grant a similar increase to selling employees and employees in
the alteration and bakery departments thereby discriminating in regard to hire,
tenure , terms and conditions of employment and engaging in unfair labor practices
within the meaning of Section 8 (3) of the Act ; ( 6) the Respondent by its officers,
agents and employees through these and other stated acts has interfered with,
restrained and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
On October 2, 1946, the Respondent duly submitted its answer in which it
admits that it is engaged in commerce within the meaning of the Act, that the
Union is a labor organization , that the Union requested it to bargain collectively
on March 30 , 1946, and that it granted an increase of wages on or about July 20,
1946, limited in its application as alleged in the complaint ; however, the answer
denies the commission of any unfair labor practices and specifically denies that
the above -defined unit is appropriate for the purposes of collective bargaining
Pursuant to notice a hearing was held at Duluth, Minnesota , on October 8,
9, 10, and 11 before the undersigned , Charles E . Persons , the Trial Examiner
duly designated by the Chief Trial Examiner . The Board , the Respondent and
the Union were represented by counsel . Full opportunity to be heard , to examine
and cross-examine witnesses and to introduce evidence bearing on the issues
was afforded all parties . At the conclusion of the presentation of testimony the
Board moved to conform the pleadings to the proof in such immaterial matters
as names, dates , places, and spelling The motion was granted without objec-_
tion. At the conclusion of the presentation of testimony the Board and the
Respondent argued orally before the undersigned . The parties were duly advised
that they had the privilege of presenting briefs for the consideration of the Trial
Examiner . Respondent submitted such a brief.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT1
The Respondent, Duluth Glass Block Store Company, is a corporation duly
organized on May 22, 1922, under the laws of the State of Delaware. It has
its principal office and place of business at Duluth, Minnesota, where it operates
a department store herein referred to as the Store. Respondent also operates
a branch store in Superior, Wisconsin During the 12-month period preceding
October 1946, the Respondent purchased and had transported to its stores in
Duluth and Superior, merchandise amounting in value to approxinately $3,200,-
000, of which more than $3,000,000 worth was shipped to the Store, and to the
branch store in Superior, from States other than the-States of Minnesota and
Wisconsin. During this year approximately 21/2 percent of the merchandise sold
by the Store was shipped to consumers located outside the State of Minnesota.
The Respondent admits, and the undersigned finds, that it is engaged in com-
merce within the meaning of the Act.
It. THE ORGANIZATION INVOLVED
Retail Clerks Local Union No. 3 is a labor organization, affiliated with the
American Federation of Labor, admitting to membership employees of the
Respondent.
III. THE UNFAIR L.%BOR PRACTICP S
A. Buch.gi ound and sequence o/ ei,cnts
Gerald Ilowze was president of the Respondent from 1936 until October 1944.
Prior to his service as president he had been a dnector of the corporation His
service in these i apacities covers the period during which contractual relations
existed between the Union and the Respondent During this time Howze was the
offices principally iesponsible for labor negotiations and contracts In 1936 the
Union struck for recognition Thereafter contracts were executed by the Respond-
ent with three labor organizations: the driver's union represented the truck drivers
and certain employees in the shipping and receiving department; the beauty shop
employees comered in the beauticians' contract, and all remaining employee- of
the store included in the unit defined by the contract executed with the Union.
This contract was of indefinite duration, subject to reopening on 30 days' notice by
either party prior to May 1, the (late of execution New contracts were executed
in 1942 and in 1944 During the negotiations in 1944 the Respondent questioned
the Union's majority ni the comprehensive unit and asked that an election be
held under the prosisions of 1llumesota State law A hearing was held betora a
conciliator train the Minnesota Labor Department He detcimined that an elec-
tion should be held in a tout 2 confined to the employees engaged in selling The
Union won the election and subsequently a contiact was executed
1 These findings are based on allegations of the complaint admitted by the Re:)nndent in
its answer, upon a stipulation between the parties at the hearing and upon testimony which
is uncontroverted
2 The unit was defined as comprising all selling employees, including salespeople in the
bakery depai tmcnt and all regulai part-time selling employees but excluding drivers, beauty
studios, photo studios, alteration department employees, lunch i oom, bakery department,
coffee shop, advertising department, display department, eleiator operators, cleaning de-
partment, repair department, personnel depaitment, stock-contiol depaitment, buyers spend-
ing less than 50 percent of their time selling, school students, and the candy department
THE DULUTH GLASS BLOCK STORE COMPANY 1071
The original negotiations in 1936 had been carried on directly between the
Union and the Respondent. In the following year the Retail Merchants Asso-
ciation of Duluth formed a labor committee of which Howze became chairman
The stores were grouped according to the merchandise handled This proceed-
ing is interested only in the department store group. Membership therein, at
times material here, comprised six stores : the Respondent, Freimuth, First Street,
Wahl, and two J. C. Penney stores. As chairman, Howze was accustomed to select
two negotiators to act with him as representatives of the department stores
While the negotiations were carried on jointly, individual agreements were exe-
cuted for each store, differing somewhat in details. In 1946 the department store
group designated Howze and Thomas M McCabe, counsel of record in this pro-
ceeding, who had handled legal aspects of all labor contracts executed by the
Respondent, to carry on negotiations with the Union
Negotiations were initiated by a letter dated March 30, 19t6, addressed by
Dan E McIver, business agent of the Union, to each of the department stores.
Its significant paragraphs read :
In accordance with the existing Agreement between your Company and
this Union, you are hereby notified that our Local Union No 3, Retail Clerks
Protective Association desires changes and amendments to the present Agree-
ment. The same to become effective May 1, 1946.
Enclosed is a copy of the proposed Agreement.
We will appreciate meeting with you, or your selected representative, at
an early date for the purpose of entering into negotiations.
On April 1, 1946, the department stores replied, through McCabe, stating that
Howze and McCabe would represent the stores in "negotiations with regard to
the renewal of the contract" and further advising that each store had requested
that the Union be informed that it "wished to present as [its] demands the
contract now in effect, together with such amendments in the wage schedules as
may be agreed upon."
Conferences were delayed until April 29, due to the absence of Howze from
Duluth. This first meeting McCabe described as a "preliminary skirmish" How-
ever, at a second meeting on May 30 there was a general exploration of the
meaning of the various sections included in the Union's proposed agreement.
When McCabe and Howze, who were negotiating with the drivers' union, failed
to arrange further conferences with the Union's representatives, McIver sug-
gested that his members were getting restive and he might be forced to call a
strike. McCabe replied, according to his credited testimony, "If you want to
take them out go ahead, we'll do it as soon as we can and that's all we can do "'
Thereafter McIver, under date of May 13, 1946, gave 10 days' notice to the State
Labor Conciliator of intention to strike the six department stores.
Under the operation of the statutes of the State of Minnesota, a conciliator from
the labor department held lengthy conferences, on May 22, 23, and 24, 1946, with
representatives of the parties in an effort to adjust their differences McCabe's
testimony reads, "We went over every section of the contract ... I can't think
of anything we didn't discuss and negotiate upon."
3 Mclver was asked what occasioned the service of a strike notice on May 13, 1946, and
answered,
Because I was in contact with Mr McCabe who was representing the various stores
and the association and insofar as a breakdown had been experienced in negotiations
I asked Mr . McCabe about having a meeting the next day or in the next couple of days
and he told me, he said he saw no purpose in having another meeting , that we might
just as well file our ten -day strike notice and bring in a conciliator in the matter.
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When it became evident that the conciliator would not be able to find ground
acceptable to both parties, the Governor, on June 7, 1946, appointed a Fact-finding
Commission. Hearings were held before this commission at various dates
between June 1S and June 26, 1946 The Commission drew up a report which
it submitted to the parties informally as a possible basis for further negotiations
When representatives of the Union and of the Respondent were unable to reach
an agreement, the Commission on July 17, 1946, made its report public. Confer-
ences at which its representatives were present continued until July 25 There-
after a Federal Conciliator intervened. At a meeting of representatives of the
parties on July 31, 1946, arranged by United States Conciliator Broad, an agree-
ment on the main issues was reached. It was agreed that McCabe and Howze
should draw up an agreement and submit it to the Respondent and to the Union
in turn for their criticism and approval.
When they did so on August 2, 1946. no important points of difference devel-
oped However, at the close of the conference with the Union representatives,
attention was called to a report that the Respondent had granted a substantial
increase to its employees who were not included in the unit to which the con-
tract applied. McCabe verified this report by inquiring of the Respondent's office
force over the telephone The Union's representatives then reported the matter
.it a membership meeting that Friday night. It was decided to reject the pro-
posed settlement After announcing this rejection to Howze and McCabe' the
Union went on strike at 12 noon August 5. 1:146
The Respondent and representatives of the Union ,N ere convened it the office
of the Mayor of Duluth on or about August 12, 1946. The Mayor desired "to
bring the parties together to get a common basis and get them back into nego-
tiations " Proceedings at that time, as is set forth below, widened the breach
between the parties. Similarly ineffective in reaching a settlement was a con-
ference arranged on September 12, 1946, b^ the Governor of Minnesota At the
time of the hearing ni the instant proceeding the strike was still tit piogres,
B The 1 el usal to bat (lain collectil,ely
1 The appropriate unit
As noted above the Union had in 1944 won an election conducted under the aus-
pices of the Division of Conciliation of the State of Minnesota to a unit confined
to the selling employees of the Respondent . On April 5, 1946 , oil application by
the Union to the State Conciliator he determined, after a hearing at which the
Union and the Respondent appeared , that the Union was entitled to represent
employees in the bakery department By agreement between McIver and the
Respondent 's representatives , negotiations for the bakery department were con-
solidated with those for the selling force which had then been opened. During
the course of the negotiations , McIvei showed Howze and McCabe application
cards from employees in the alteration department which proved that the Union
possessed a majority Respondent accepted this proof of majority and has not
since questioned it. It is clear , as appears below , that the Union had a strong
majority in the marking department . McIver advanced the claim of the Union to
recognition as statutory representative during the negotiations and some con-
sideration was given to matters affecting this department However its status
' It was McCabe's testimony that McIver called him at 10 30 'Monday morning, August 5,
and said,
Toni, the union have rejected the contract proposal that you submitted to us Friday.
THE DULUTH GLASS BLOCK STORE COMPANY 1073
was never clearly defined As Howze test'fied, "I really didn't give the marking
department any consideration, I mean I never was even thinking about that, I
don't think I gave it any consideration." Respondent's President Jay T Baughan'
stated his position concisely,
My impression has always been that since we had this election [in 1944] it
the Union] represented the sales people only, until such time as we received
a certification on the bakery from Leonard Johnson, and I believe it was at
the fact-finding Board where Dan McIver showed us the actual cards that
were signed in the alteration department, so before we had this meeting
with Leonard Johnson I thought it was the sales people, after the meeting
with Johnson I thought it was the sales people and bakery and after the
fact-finding board I thought it was sales people, alteration and bakery.
When asked specifically about the marking department, Baughan testilied,
"I might say that I saw it in this contract two or three times and advised Mi.
Howze that to my knowledge [the Union J did not represent them "
When the representatives of the Respondent and of the Union submitted a
joint statement of points of agreement and matters at issue to the Fact-finding
Commission lit June 1946, the unit at the Store was defined to include ' Selling
and marking employees, Alteration Department and Baking Department." In
the draft of a tentative agreement reached on July 31, 1946, the unit was stated
to include, "Selling, alteration and bakery departments." McCabe's testimony
contains the following excerpt,
On this August 2d it [marking department] again came up and
[McIver I said, "You're leaving out the marking- department," so again I
wrote it in and it was just a hit and miss proposition, we never knew whether
we were in or out on that . . .
The Respondent denies in its answer that these four departments constitute
an appropriate unit. In its brief the unit is attacked as an illogical combination
of workers whose work is totally different in character and whose remuneration
is based on different methods' In oral argument the Board's counsel defended
the unit as "a store wide unit of people whose functions are closely integrated
with the moving of goods to the consuming public . . . a typical functional unit
of people who work on and with . the goods that the store has to sell, no one
else is in it, everyone else is excluded."
It is clearly reflected by the record that each of the four groups is a homoge-
neous and clearly identifiable unit and that the proposed unit coincides with the
extent of effective ofganization by the Union During lengthy negotiations the
Respondent did not definitely reject the unit composed of all four groups. No
other labor organization advances claims to represent any of these departments
In accordance with the Board's established policy of extending the benefits of
collective bargaining to groups in similar circumstances, the undersigned finds
that a unit composed of the selling, bakery, alteration and marking department
employees of the Respondent constitutes an appropriate unit for the purposes of
collective bargaining within the meaning of the Act.
The parties are in agreement as to the employees included in, and excluded
from, the bakery, alteration and marking departments. In the selling depart-
ments the status of three G. I. trainees for positions as supervisors : Russell
Lackie, Albert Verhel and Kenneth Russ, is in controversy. The parties further
6 McCabe in his testimony said of the unit , "I questioned that unit every time we bar-
gained because I think it is the craziest patchwoik :anybody ever put together "
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disagree on the question of the inclusion or exclusion of the registered phar-
macist in the drug department .' The G. I. trainees are paid a wage by the
Respondent, as stated by Baughan , equal " to what the job should pay and the
store pays part of it and the government pays part of it " Under the terms of
the G . I. training law trainees cannot receive commissions . Hence the trainees
in the Respondent 's store are not given quotas and do not receive bonuses if
they sell beyond the quota . Employee Patricia Mencel testified that Lackie was
head of the Men's department in which she was employed She further testi-
fied that about a week after the strike began Lackie telephoned to her home and
said "if I didn't come back to work I wouldn ' t have a job." On August 19
Mencel , accompanied by employee Corrine DeVitis , as stated in her unassailed
and credited testimony , inet Lackie in Respondent ' s Coffee Shop . At this time
Lackie repeated to them the statement just quoted . On their agreeing to return
he took them to Mrs Benson , Respondent 's personnel manager , who had the
information clerk type out their resignations from the Union . On signing these,
they were ieinstated in their positions . Neither Benson nor DeVitis were called
as witnesses . Lackie confirmed Mencel 's testimony as to the meeting in the
coffee shop and his referring Mencel and DeVitis to Benson He disclaimed
knowledge of what thereafter happened and stated that he did not recall tele-
phoning to Mencel after the strike started. He testified that on the initiative
of DeVitis he had met her during his lunch hour shortly after the strike began.
She then told him she desired to return to work whereupon as Lackie 's testi-
mony reads, "I told Miss DeVitis I would have to see the merchandise manager "
His further testimony as to the meeting later with Mencel and DeVitis and his
referring them to Benson reads, "I informed her [Bensons that these two girls
wanted to come back to work and I brought them up for the purpose of seeing
her about it." The undersigned notes that Lackie's testimony contains no
reference to any consultation by him with his merchandise manager. Lackie
further testified that he " tried to make it a point " to call absentees in his depart-
ment to find out why they were not there. He recalled one such occasion when
he had called Mencel . After calling the absent employee " if it was a busy day"
he called the personnel manager and asked for more help Lackie further tes-
tified ' that when asked by Mencel what his stand was on the strike, he told her,
"because of the fact that I was a G. I. trainee that I didn 't feel that I was in-
volved and consequently I would take no action as far as taking part in the
strike ." Neither Verhel nor Russ was called as a witness . The record reflects
that, like Lackie , they were in training to become supervisors.
After consideration of the full record the undersigned concludes and finds that
the G. I. trainees for supervisory positions 7 are shown to have exercised super-
visory authority ; to have been regarded as supervisors by employees, and to
have considered themselves ineligible for participation in collective bargaining.
Accordingly it is found that Lackie , Verhel and Russ should be excluded from
the appropriate unit.
The pharmacist must be licensed by the State of Minnesota . His importance
in the drug department is indicated by Baughan 's uncontroverted and credited
testimony, reading,
9 On the pay-roll list for May 17, 1946, Edward Degner appears as "druggist " ; on that
for August 1, 1946, John McCarter is included as "pharmacist." The position seems to have
been vacant on July 17, 1946.
7 See Matter of Louis Pizitz Dry Goods Co., 70 N. L. R B. 579, where the Board excludes
trainee buyers and assistant buyers because "they are being trained for supervisory
positions."
THE DULUTH GLASS BLOCK STORE COMPANY 1075
The pharmacist can sell and is the only one that can sell much, of the
merchandise that we carry, and no one in the store can sell other articles
unless there is a pharmacist present.
The pharmacist is paid a straight salary and has no quota assigned He does
not receive commissions . His basic pay is about twice that received by sales
girls. However, some of the sales girls receive as great remuneration as he,
due to the receipt of bonus payments for sales beyond their quotas. While
the pharmacist compounds prescriptions, Baughan testified that the "smallest
proportion of his time" is spent in this work. The determination made by the
Minnesota Department of Conciliation in 1944 did not specifically exclude this
enildoyee from the unit found In this state of the record the undersigned finds
that the licensed pharmacist should be included in the appropriate unit.
The undersigned finds that a unit including employees in the selling, bakery,
alteration and masking departments, including the licensed pharmacist, but ex-
cluding trainees for supervisory positions and all supervisory employees' with
authority to hire, promote, discharge, discipline, or otherwise effect changes in
the status of employees or effectively recommend such action, is appropriate for
the purposes of collective bargaining within the meaning of the Act.
2 The Union' s majority status
The Union presented a list containing 55 names ° of individuals, alleged to be
employees of the Respondent, who were members of the Union prior to May 14,
1946. Of these individuals 5 • Helen Bridges, Ida Elogson, M^ rtle Felton, Lillian
1Iayoil, and Nubia Swanson were not found on any of the thiee pay-roll lists
incorporated in the record. Four, Ainy Godfrey, Nancy Haugh, Mabel Bethune,
and Marie Tollund were identified as supervisors Impi Grondahi, as a maid
was not eligible for inclusion in the appropriate unit. The Union presented a
further list containing 30 names who joined the Union after May 14, 1946. All
but 3: Charlotte Barsness, who joined on July 26 ; Lillian Beard, July 29 ; and
Marie Mahoney, July 26, became members of the Union on August 5, 1946, or at
a later date. Of the 26 eligible for inclusion here, who joined on the day the
strike began, i e August 5, 1946, only 11 can be identified on the 3 pay-toll lists
in evidence iU While the undersigned finds it probable that some at least of the
15 others should be included in this computation, he finds no basis in the record
for resolving this question.
The reew-d contains lists of employees within the four departments included
in the appropriate unit drawn from Respondent's pay rolls for May 27, July 17,
and August 1, 1946 These lists show the job classification of each employee
and designate those of supervisory status The Board and the Union accept
these supervisory classifications and it is agreed that all so designated and
8 At the hearing the Union advanced claims to represent supervisors who spent more than
50 percent of their time selling merchandise . This was in accord with the finding made by
the State Conciliator in 1944 IIowever , no evidence was adduced to show that any of the
supervisors listed on the van ions pay rolls fell within this description . Baughan testified
to the contrary and the undersigned accepts his designation of supervisors as did the pal ties
9 This includes the name of Hilla Heino , a bakery department employee , added at the
hearing
30 This omits, as ineligible for inclusion in the appropriate unit , Catherine Dubell and
Lois Ely, identified on the August 1 pay -roll list ' as an "elevator operator " and "buyers
assistant" respectively. Ten of those identified were sales persons , the other was employed
in the bakery.
781902-48-vol. 76-69
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
verified in the testimony of Baughan should be excluded. The undersigned so
finds.
It is desirable to include here explanations covering the handling of certain
cases. Baughan testified that Vivian Miller had been on sick leave since Febru-
ary 1, 1946, but was still entitled to be included as an employee. The undersigned
accepts this statement as (lid the parties at the hearing. Baughan further testified
that Miller was an "ordinary clerk." The May 17 pay-roll list however carries
her as "Glove Supervisor." Her name does not appear on the July 17 pay-roll
list nor is anyone designated as glove supervisor. On the August 1 pay-roll list,
Lucile Albertson is designated as "Merchandise Manager" for Gloves and Jewelry
and no other employee is listed for the glove department. However Jeanne
Johnson, who joined the Union on August 5, 1946, had been included in the
May 17 and July 17 lists as a clerk in the glove department. Under these
conditions the undersigned has concluded that Miller should be excluded from
the reckoning for May 17 and July 17 as of supervisory status but included in the
August 1 list as an ordinary clerk. It is further found that Jeanne Johnson
should be included among the employees on all three dates and as a union
member after August 5, 1946
Florence Lynch is carried on the May 17 pad -roll list with the designation
"shrubbery." On the July 17 list she is classified as "China Supervisor."
Baughan testified that she was regarded as of supervisory status while tem-
porarily assigned to the sale of shrubbery in the warehouse The undersigned
accepts this testimony, as did the parties While Amy Godfrey is carried on
the May 17 payroll list as "Ready-to-Wear Clerk," it was Baughan's accepted
and credited testimony after consultation with the appropriate Respondent offi-
cials, that she became supervisory on April 15, 1946 In computing the Union's
status as bargaining representative, Lynch and Godfrey, as supervisors, have
been omitted from all three lists.
No problems developed as to inclusions or exclusions in the bakery, alteration
and marking departments However, the lists of the selling employees are ad-
niittedly incomplete in some instances and demonstrably so in others As noted
above, Jeanne Johnson has been added to the August 1 list as a glove clerk.
Patricia Mencel gave unassailed and credited testimony that she was employed by
the Respondent from April 27 to the date of the strike, i e. August 5, 1946. Her
name appears on none of the three lists In company with employee Corrine
DeVitis, she conferred with Russell Lackie relative to returning to work. It is
clear from the record that Mencel and DeVitis were employed prior to the
strike Each of tlieni joined the Union on August 5. Since there is no basis
in the record for determining the length of service of DeVitis, her name is added
only to the August 1 pay-roll list Mencel is included in all three lists. The
case of Patricia Brown is similar to that of Mencel. She gave iii icon troverted
testimony, accepted by the undersigned, that she was hired by the Respondent
"about the middle of March" 1946 and worked there until she joined the strikers
on August 5, 1946 She joined the Union on that date. Under these circum-
stances the undersigned finds that her name should be carried on all three
pay-roll lists.
Clarice Craker, Hulda Soderberg, and Carrie Harlock each joined the Union
before May 14, 1946. They do not appear on the May 17 or July 17 pay-roll lists
but are included for that of August 1, Craker as a jewelry clerk and Soderberg
and Harlock as clerks in the millinery department. Harlock was called as a
Board witness. It was her unassailed and credited testimony that she had been
THE DULUTH GLASS BLOCK STORE COMPANY 1077
employed in Respondent's store "about 12 years." On or about August 1, 1946,
she received a vacation pay check and a back pay check for work performed
since May 1, 1946. It is clear that Harlock should be regarded as an employee
on all three pay-roll lists It is a justified inference drawn by the undersigned
that Craker and Soderberg were omitted from the May 17 and July 17 pay-roll
lists, under conditions analogous to those affecting Harlock. Their names have
accordingly been added to these lists.
Russell Peterson was employed in the delivery of merchandise to and from
the marking department until July 15, 1946 At that time he became receiving
clerk and came within the jurisdiction of the drivers' contract." He was not a
union member and his name is accordingly carried as a• non-union employee in
the marking department on the May 17 list and omitted on the later dates.
Ruth Andeison is included in all three lists as a "hosiery clerk." She joined
the Union prior to May 14, 1946. She resigned in a letter, the envelope enclosing
which was postmarked July 25, 1946. Anderson's resignation was the second of
14 received by the Union on dates from July 18 to September 7, 1946 Her letter
is typed and reads as follows:
Mr. Mclvr:n
Labor Temple, Duluth, Minn.
DEAR SO;: I hereby place my resignation from the Retail Clerks Union,
Local #3, as of July 23rd, 1946
Respectfully yours,
Sgd. RUTH AND ESOlc
It is true , as stated in Respondent 's brief that "No testimony in any manner
impugns the good faith and purely voluntary character of her resignation "
Anderson was not called as a witness and no testimony received referred to her
resignation . The undersigned notes , however , certain close similarities in th'
form of the typed envelope and that of the letter itself to the four resignation
letters, discussed below in another connection , which strongly suggest that An-
derson's letter was typed in the same office as the four others Moreover the
Respondent had been responsible as the record shows , for various acts of inter-
ference, restraint , and coercion prior to the date of Anderson 's letter of resigna-
tion. She had maintained her membership from a date prior to May 14, 1946,
until July 23, 1946. Under these circumstances the undersigned has rejected
this resignation and maintained Ruth Anderson ' s name on the August 1, 1946,
pay-roll list as a union member.
Taking account of these various considerations , the Union ' s majority status at
various dates i s indicated by the following summary statement.12
May 17 pay-roll list
Departments: Union don-Union Total
Selling----------------------------- 29 34 63
Marking--------------------------- 3 2 5
Alteration-------------------------- 4 1 5
Bakery----------------------------- 9 1 10
45 38 83
11 The agreement proposed by the Union contained a clause reading , In part, "Excluding
all employees under the jurisdiction of General Drivers Union , Local 346."
" Detailed lists are presented at Appendix A of this Intermediate Report.
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
July 17 pay-roll list
Departments ' Union Non-Union Total
Selling ----------------------------- 28 36 64
Marking--------------------------- 3 1 4
Alteration-------------------------- 4 1 5
Bakery----------------------------- 9 1 10
44 39 83
August 1 pay-roll list
Departments: Union Non-Union Total
Selling -----------------_---- 30 44 74
Marking---------------------- 4 0 4
Alteration-------------------------- 4 1 5
Bakery----------------------------- 9 1 10
47 46 93
As of August 5
Departments: Union Non-Union Total
Selling----------------------------- 40 34 74
Marking---------------------------- 4 0 4
Alteration-------------------------- 4 1 5
Bakery----------------------------- 10 0 10
58 35 93
On this showing the undersigned finds, as the complaint alleges, that the Union
has been, at all times material in this proceeding , the statutory representative
of all the employees in the above -defined unit for the purpose of collective
bargaining in respect to rates of pay, wages, hours of employment, and other
conditions of employment.
3. The refusal to bargain
As noted above the first bargaining conference between representatives of the
Union and the Respondent was held on April 29, 1946. After service of the
Union strike notice dated May 13, 1946 , negotiations continued before the State
Conciliator on May 22, 23 , and 24. After the appointment of a fact-finding
commission on June 7, 1946 , the Unions and the Respondent were requested by
that body to draft a statement which would indicate their points of agreement
and difference . They did so in a document made up as an outline of a contract
which noted nine issues as unsettled . The last of these was of minor significance
and was disregarded by the Commission " In its report issued under date of
July 17 that body summarized the controverted points as follows :
1. The matter of increase in wages.
2. The matter of Union shop.
3. The matter of jurisdiction of the business agent of the Union.
4. The matter of employment after 6: 00 p. in, on Monday night.
5. The hours per week to be worked by the employees.
6. The question of what vacations should be granted.
7. The matter of seniority in the respective stores.
8. The question of supervisors, that is, as to who are supervisors within
the bargaining unit.
13
The parties differed on the adding of the words "or other just cause" to causes for dis-
charge which precluded the receipt of a week's termination pay.
THE DULUTH GLASS BLOCK STORE COMPANY 1079
Before and after the issuance of its report the Commission endeavored to assist
the parties in finding a basis for agreement on these points . In the report the
Commission made recommendations as to each of these matters . 1. On wages
it recommended an increase of 13% cents an hour "on minimum and prevailing
rates." 2. On union security it proposed that the parties accept the provisions
of the 1945-46 contract between the Union and the Wahl department store'
reading, in part, "As a condition of employment all employees who are members
of the Union on June 1, 1945, and those that join thereafter , shall remain members
in good standing ." To this the Commission proposed 'an addition reading, "All
non-union employees eligible to join this Union shall be required to pay the sum
of $100 per month to the Union as and for a service charge for services rendered
by the Union to all employees . The $1.00 per month shall be deducted by the
employer from each non-union employee's pay roll once a month and forthwith
thereafter remitted to the appropriate Union official." 3 The Commission agreed
that the Union Agent should have the right to visit the store and talk to union
employees on union business after first securing permission from an authorized
representative of the Respondent . 4. Overtime pay was recommended for all
hours worked after 6 p. in. by employees on the regular store shift. Exception
was provided for three Saturdays and the "peak week during December." 5.
The Commission proposed a 42-hour work week. 6. The vacation plan recom-
mended was : 1 week for employees regularly employed for a year ; 2 weeks for
those regularly employed for 3 years or more. 7. On seniority the Commission
proposed that the standing of each employee be according to their departmental
seniority, "giving proper consideration to their skill and efficiency." Transferred
employees were to retain their accrued seniority. 8. Supervisory employees
were to be excluded from the unit represented by the Union . The Commission
further ruled that buyers who spent more than 50 percent of their time selling
should not be considered supervisors.
In the final outcome both the Union and the Respondent accepted the Com-
mission's recommendations on the wage increase and the 42-hour week The
vacation proposal was in substance accepted although the Respondent wished
that its application be defer red until 1947. The Union accepted the provision
regarding access of their agent to union members while on duty. Later a modi-
fication proposed by the Respondent was agreed upon. Points sternly in dis-
agreement were the matter of union security " and overtime compensation. The
Union agreed to accept the plan proposed by the Commission. The Respondent
was strongly opposed to the $1 00 per month service charge to be imposed on
non-members and collected by it. The Union found the overtime pay proposals
acceptable while the Respondent rejected them.
The Union at this time proposed to the Respondent's representatives that set-
tlement be reached on the basis of the Commission's recommendations with the
addition of the matters previously agreed to and submitted to the Commission
This proposal evoked the following reply signed by McCabe and I3owze :
GENTLEMEN : We have met with the Employers today and submitted your
offer as made this morning, and while they cannot agree to all of the
proves ons which yt.u suggested, they make the following offer:
1. Tie Employers offer a 13i/,¢ raise across the board on the base pay
for all regular employees now in their employ, retroactive to May 1, 1946.
2. All new employees shall receive 131/20 increase on the old scale.
1+hleCabe testified, "I might say that where we broke down before the Commission was
union sec", it}, we got nowheic on thit, that was a deadlock."
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The Employers offer Union maintenance of membership as in the Con-
tracts expiring May 1, 1946, with the following three propositions offered:
(a) Letter to new employees stating that the Employers have no objec-
tion to their joining the Union.
(b) Once each month the Business Agent shall have the opportunity to
talk to all employees at the store who have been hired during the past
month.
(c) Change name of Grievance Committee to Store Committee.
4. The Employers will sign their present individual Contracts with the
provisions as stated above and with the following change :
"During peak weeks the Employers will pay time and one-half for all
hours worked over forty-two (42) hours in any one of said peak weeks."
Thereafter the United States Conciliation Board intervened and on July 31,
1946, Commissioner Broad conferred with representatives of the parties. At
this meeting the Union agreed to forego the $1.00 per month service charge rec-
ommended by the Commission The representatives present reached substantial
agreement on the remaining points of difference. Howze and McCabe were to
draw up an agreement incorporating the provisions determined upon and submit
the document to the Respondent and the Union. This was done on Friday,
August 2, 1946. Baughan, acting for the Respondent, agreed to accept. The
Union representatives also found the proposal acceptable. However, it had been
reported to them that employees not in the departments represented by the
Union had been granted an increase of 131/2 cents an hour effective on that date
On inquiring of Howze and McCabe as to the truth of this report it was verified
after telephoning to Respondent's officials. The matter was debated in a union
meeting that evening and a decision reached to reject the proposed settlement.
This determination was communicated to the Respondent on Monday morning,
August 5, 1946, and a strike was called at Respondent's store at noon that day.
McIver's testimony regarding these events includes the following excerpt
The matter was thorouglily discussed and reviewed and tinder those cir-
cumstances we wouldn't or couldn't agree to what we thought would be a
suitable settlement prior to that action, prior to that
The subsequent meeting on or about August 12, 1946, at the office of the Mayor
of Duluth was primarily concerned with the dispute between the Union and the
Respondent Representatives of the other stores were present in the charactei
of observers At this time the strike was confined to the Respondent's store and
the representatives of the other five stores declined to participate actively in the
Mayor's conference, hoping to avoid involvement in the strike. The Respondent
was represented by its Vice-President Churbuck,n Baughan, McCabe and Howze.
Prior to the meeting Churbuck had announced he was "going to do the talking"
for the Respondent In deference to his official position McCabe and Howze
acquiesced
The Union's representatives were Melver, Gerald W Heaney, its counsel of
record in this proceeding, and E L Slaughter, an organizer and representative
of the American and the Minnesota Federation of Labor." After some prelimi-
15 Churbuck' s name is soinetmies recorded as Cherbuck in the record Ile did not appeai
as a witness Churbuck had, in effect, superseded llowie and McCabe as Respondent s
representative They described their status at this conference as "unofficial."
11 Thomas McDonald, business agent for the Duluth Building Trades Council, was also
present as an interested spectator.
THE DULUTH GLASS BLOCK STORE COMPANY 1081
nary sparring, Churbuck made a forthright pronouncement of the Respondent's
future position on union security Baughan testified that he said
Now just let me make it clear right at the start so there will be no lnis-
understanding, we have stated our stand and we want to repeat it and we
hope that you will believe us, and that stand is that never, come what may,
will we sign any form of union security, . , . period, there's our stand,
we'll be very happy to meet with you at any time you wish and negotiate
with you on anything else, except that one point.
Heaney in his testimony gave the following account of Churbuck's statement,
We asked him [Churbuck I . what their position was and what they
were willing to do toward sitting down and completing a contract with us
and Mr Churbuck said that as far as the Glass Block was concerned that
they would never sign a contract which contained any form of union security,
including maintenance of membership, a union shop, service charge or any
form of union security whatsoever, and when I asked Mr. Churbuck, . .
what about the rest of the contract which we have discussed and agreed
upon, and lie said that it is our position that we are going to start nego-
tiations from scratch and that all prior negotiations are thrown out of the
window-he may not have used the word scratch, but lie said negotiations
that have taken place up to date are thrown out of the window, if you people
want to sit down and talk we'll negotiate from the beginning"
Banghaii said nothing at the conference However his testimony makes clear
that, as president of the Respondent, his position was in full accord with Chur-
buck's declaration He explained his position on union security as follows
Going back to the time when Mr Howze was president of the store and
the maintenance of membership first came up, we didn't think it was a good
thing and strenuously objected to it at that time, we never changed our
minds on the fact that it wasn't a good thing to have but year after year we
sort of accepted it in order to make a settlement, a peaceful settlement, and
at the Spaulding Hotel on July 31, I personally still felt it was not a thing
that we'd like to have, but rather than go through a strike why we would
be willing to go ahead the same as we had in the past, and it was a sort of
gi e and take.
Well I returned to Duluth on the afternoon of August 5th and found a
strike going on at the [stoie] ... and on Monday night the demonstration
at our store was quite forceful and so we came to the conclusion that since
they had called a strike that it didn't mean much for us to give maintenance
of membership, so from now on we'd try to get the sort of contract we liave
always felt we should have.
As long as the strike was called we might as well go along until we got a
contract without it
17 Howze , McCabe, McIver, and MacDonald also gave accounts of what Churbuck said.
They differ as to details but do not materially conflict with the quotations stated. McIver
stated that Chin buck declared that the Union "would have to settle on his terms" or that
"any settlement would have to be on his teams only" No other witness corroborated him,
while Howie explicitly refuted this statement of Mclvei saying, "I don ' t iecollect [Chur-
buck] sa3lug that they would ha%e to sign any contract on his terms, I did not hear him
say that at all " After consideration of the recoid the undersigned has rejeced this testi-
mony by McIver.
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under cross-examination Bauglian stated that it uuas his position that the
Respondent would not sign any kind of a contract which contained any kind of a
union security clause regardless of whether it is a closed shop, union shop, main-
tenance of membership or any other variation of union security-; that he had
come to this conclusion shortly after the strike started and further declared that
this "always will be" his position's
Baughan made a radio talk on Thursday night, August 14, 1946 An account
of what he then said was published by the Respondent as a paid advertisement in
a Duluth Newspaper on the following day This advertisement defined the
"union shop" in the following terms • "a union shop means every person would be
forced to join the Union in order to work at the Glass Block " After stating that
the fact-finding Board had recommended a $100 monthly deduction from each non-
union employee's pay to be handed over to the Union as a service charge, the
advertisement continues,
Here is our policy on these issues and WE WILL ?\E\Eii CUA\GE THE-\L.
1. We Will NEVER agree to any form of the union shop
2 We will NEVER compel our employ ees to join a union
3. We Will NEVER force our employees who are not members of the union
to pay $100 per month to union officials for the support of their jobs.
4. We Will NEVER force a union member to stay in a union if he or she wished
to resign.19
On September 12, 1946, representatives of the Respondent and of the Union met
with the Governor of Minnesota at his request. Churbuck and Baughan repre-
sented the Respondent; McIver and perhaps others, the Union Churbuck re-
peated his pronouncement on union security first made at the Mayor's conference.
Under these conditions the Governor's attempt to advance a settlement failed.
On September 13, 1946, Heaney and McIver met ti ith McCabe, Howze, Chur-
buck, Baughan and a repiesentative of the firm of Donald S Holmes, Respondent's
counsel of record in these proceedings, in a final attempt at dii ect negotiations.
McCaba gave unassailed and credited testimony supported by a memorandum
made at the time, as to what then occurred. Heaney first declared that the Union
was present to bargain in good faith but expressed doubt as to possible good results
unless the Respondent's representatives had altered their position Churbuck
then said, as McCabe's testimony reads, "we are here ready to negotiate on any
issues, discuss any issues, we will never, come what may, agree to any form of
union shop or any kind of maintenance of membership, but any other issues, on
wages we will give 131/2 [cents] " The parties discussed the quotas which
furnished a basis for bonus payments and these was some slight reference to
other matters not material here It is agreed that nothing was accomplished
at this final meeting 20
General conclusions
The Board in effect bases its allegations of refusal to bargain on three con-
tentions:
1. That Respondent 's representatives did not have full authority to carry
on negotiations.
18 Respondent's counsel twice admitted on the record that this iepiosented the "piesent
position" of the Respondent , saying , "It may be understood [ it] has been the position of
the Respondent since the strike that it would grant no form of union security
39 These declarations had been published in substantially the same form the preceding
day in an advertisement inserted in the same newspaper
20 Howze testified that "nothing" happened at this meeting.
THE DULUTH GLASS BLOCK STORE COMPANY 1083
2. On unilateral actions by the Respondent during the negotiations on
matters then under discussion.
3. On Respondent's declaration after August 5, 1946, that it would not allow
discussion in bargaining conferences of any form of union security.
These matters will be considered set tut»n.
1. It is true, as the record reflects, that McCabe and Howze did not have full and
final authority to negotiate and execute a contract. However they had a free
hand in negotiating and their reports to the executive officers of the various stores
were prompt and all but continuous. As stated by Howze, Baughan and "all of
the employers generally" were kept advised of the progress of the negotiations
He testified, "We spent almost as much time with the employers as we did N-Vith
the Union negotiating. explaining what had happened and getting what we could
do and so forth " Howze was asked if lie had "full and complete authority from
the Glass Block to negotiate a contract" and answered, "I had full and complete
authority from all of the six stores to do that, but of course, I never did anything
without consulting them and finding out what they wanted " Howze's further
testimony reads,
The only agreement I ever made with the union-I could bind all of them
[the stores]-but the only agreements we made with the union were tenta-
tive agreements and they had to be referred back, we generally referred them
back, however, we did, Mr. McCabe and I made an absolute agreement with
them, yes, it was binding, where we made a tentative agreement it wasn't
binding until we got authority from the employers
I never committed myself to and agreements that were not subject to
change, with the exception of the ones that I mentioned here that I knew were
standard and wouldn't be changed.
McCabe's testimony in point here reads,
It was understood, it was stated to the union that Mr. Howze and I had
authority to negotiate and that extended to forms of the contract, form of
arbitration clauses and seniority clauses and things of that nature, lie and I
had authority to agree on matters of that type because we knew the employers
would accept our recommendations on them, which they slid ; in many in-
stances, however, on any matter of substantial policy such as the union shop,
the right of the business agent to visit stores, vacations, wage increase and
matters of that type we had no authority, except to negotiate with them and
than take it back to the employers and recommend it to them, and all of our
agreements were tentative, looking forward to the execution of a completed
contract, of course
The difficulties of Howze and McCabe were increased by the fact that the six
department stores which they represented were seldom in full accord. As Howze
testified, "1 don't know of any case where I ever took back anything and everybody
was in agreement, we were still negotiating you see, and I took a great many
things back to all of them including respondent " On the thorny subject of union
Security the six stores were widely split, three of them, including the Respondent,
were determined to drop the maintenance of membership clause included in the
contract which lapsed on May 1, 1946. McCabe testified as follows,
I would dare say that if it hadn't been for the insistence of Mr. Howze
and myself of keeping maintenance of membership in front here and saying
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"let's go along on it," that the break on the question of maintenance of teen]-
bership would have cone much enilier in the negotiations.
The undersigned notes that, as clearly shown by the events between July 31
and August 5, 1946, the Union negotiators were ender the same necessity of
submitting matters agreed upon in the negotiation to their principal, the Union
assembled in mass meeting, as were Respondent's representatives" He notes
further that despite any limitation of authority, IIowze and McCabe were suc-
cessful in negotiating a tentative agreement lound "suitable" by the Union
negotiators After consideration of the full record the undersigned finds no
merit in this contention of the Board.
2. The Board presented two matters on which it contended the Respondent
had taken unilateral action (hiring the course of the negotiations The Board
alleges that this constituted refusal to bargain These matters were:
a, Determining on Saturday afternoon closing shortly after July 1, 1946
b. Giving a wage increase, on October 1, retroactive to May 1, 1946, applicable
to all hours worked in the store between these dates
2a. The facts as to the determination of Saturday closing are not in dispute.
When the Union presented its proposals as a basis for negotiations on March 30,
1946, the store was working from 9 a in. to 5: 30 p in. on each week (ay except
Monday when the store opened at 12 noon and closed at 9 p. in. The Union
requested that overtime should be paid for all hours over 7 per day and 40 per
week and that "during the period from June 1st to August 31st, the standard
work week shall be completed at twelve (12) o'clock noon oil Saturday " McCabe
gave uncontroverted and credited testimony relative to a negotiating conference
held May 3, 1946, reading as follows,
There was a discussion of the 40 hour week, at that time the employers
didn't agree to it . . . ; Saturday p. in. was discussed, in that case the Union
requested time and a half alter 12 o'clock noon during June, July. and August,
that was a new proposition, first they had said that they would take time
and a half for Monday nights but on Saturdays an absolute closing, they
must close on Saturdays, but on this date Mr McIver made a proposal that
he would consider a time and one half after noon on Saturday and nothing
further was reached on that.
It will be remembered that a considerable gap in the negotiations occurred
after May 3, followed by the intervention of the fact-finding commission Heaney
gave credited testimony that the matter of Saturday closing was a part of the
negotiations from the time when he first attended the conferences, i. e about the
middle of June 1946. His further testimony in point here, reads,
As the month of July was very close and the union wished Lo have the
stores close during the months of July and August, and for that matter June,
Mr. Mclver and I went up to see Mr. Howze . . at the time I told him that
we were willing to continue negotiations on the entire contract but I would
like very much to have the . . Saturday afternoon matter settled imme-
diately so that the girls would get the benefit of Saturday afternoon closing
before the entire summer was over ... At that time Mr. Howze told me he
would take the matter up with the various employers involved . . and he
would let me know as soon as he received void . . . Mr. Howze [later] told
me that . . . lie had talked to Mr. Baughai and that Mr. Baughan refused
21 As McCabe testified, "We always recognized that they [the Union repiesentativesl
must take it back and have it approved by the union, whether they say so or not ne know
that it is a fact."
THE DULUTH GLASS BLOCK STORE COMPANY 1085
to close his store on Saturday afternoon ; . . . The first thing I knew about
the Glass Block closing on Saturday afternoons was a small announcement
that 1 noticed in the paper [on the first Friday in July].
llowze confirmed this statement by Heaney stating that he had told Heaney
all the stores had agreed to close except the Glass Block and two others. Howze's
further testimony reads, '*the next day in the paper they advertised that they had
decided to close and I wasn't in on that negotiation."
Helen M Tolhuid, a supervisor in the Boys' Department, gave unassailed and
credited testiuony, that she was called into Baughan's office on or about July 2,
1146, and asked if she attended any of the union meetings. Tollund replied, "I
attended a few but I hadn't been a regular attendant." After other discussions,
not material here. Baughan asked if she "could name a few reliable girls and
he'd call a meeting" Tollund named Gladys Jovin, a drapery clerk, Helen Lor-
ence, it department manager, Florence Lynch, china supervisor, Esther Pope,
linen clerk, Marie Jodevin, supervisor of the jewelry department, Mary Spooner,
marking room supervisor and Mabel Bethune, boys' supervisor. Four of these
employees, Bethune, Jovm, Pope and Tollund were union members. Bauglian
rejected Bethune since Bethune "didn't like him " The others were called
to Banghan's ofli, e What then transpired was stated in Tollund's credited
testunony as follows.
Well, lie I Baughan I asked us if we would like to have Saturday afternoon
oil' or Monday night oil* or take a day off a week and he would set the day, we
couldn't have a day of our choice, said we all decided on Monday evening off
at that meeting
Jovin was also called by the Board as a witness and gave uncontroverted and
credited testimony reading as follows:
Well, lie [Baughan] said lie called us together to discuss about the Satur-
day afternoon closing and he said what he had thought of that we would
work on like we were working, work Saturday afternoons and we would get
a day off during the week which lie would give to us; we had no choice, and
the girls talked on about it and then I made a suggestion that I would much
rather have Monday nights oft and work a straight week and they were all in
favor of it-and then lie asked us if we wanted to decide as a group there for
the store and one of the girls spoke up and said no, they thought they ought
to take a vote on it because the talk was Saturday afternoon, and then they
called another meeting on Friday . July 5th . . and Mr Baughan
wanted to know if we had talked to the girls and how they felt about it and,
of course, everybody was much in favor of Saturday afternoon and so he said,
well, we'd take a vote . so those papers were prepared, typed three
columns and one was to work a straight week and a day off or Monday night
off or Saturday afternoon and the department heads brought the papers and
we signed these papers. . .
It was Tollund's further testimony that she, Lynch and Lorence brought the
signed pacers to Ilanghan's office, counted them and "left them right on his desk."
Her remembrance of the result was "104 for Saturday afternoon off and about 9
for Monday nights off" Baughan accepted this result and closing at noon on
Saturday began next dav, July 6, 1046.
On these facts it is necessary conclusion that the action taken by Baughan
on Saturday closing was unilateral in character. The Union was not consulted.
The Respondent's defense against this allegation of the Board is that the matter
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Saturday closing had historically depended on a policy laid down in the Re-
tail Merchants Association As Howze stated in his testimony, "It has nothing
to do with the union, there is nothing in the union contract about that." From
1940 to 1945 practically all of the retail merchants closed on Saturday afternoon.
In 1945 three of the largest retail stores, Sears Roebuck, Montgomery Ward and
the Respondent remained open. Securing agreement on this policy had been
chronically difficult. As Howze testified, the stores "psually spend two weeks
haggling over that." When Bauglian in the first clays of July took the action
detailed above most of the other department stores had publicly stated that they
would close on Saturday afternoon.
Respondent in its brief argues that negotiations were deadlocked, that the sum-
mer season was at hand and that a decision must be reached. Under these
conditions Baughan consulted with a committee headed by an employee, Tol-
lund, known to him to be a union member. The undersigned can find no justifica-
tion for Respondent's action in the make up of this conunittee. Five of its seven
members were of supervisory status They were therefore excluded from the
unit of which the Union was the statutory representative. The two remaining,
Jovin and Pope, were both union members Hours of labor are expressly listed
in the Act as matters for collective bargaining. In the instant proceeding Satur-
day hours are shown to have been under discussion by the parties at the time
that Baughan, ignoring the Union, took unilateral action on Saturday Closing.
Baughan's failure to consult the Union in this matter is in no degree excused
by his dealing with a committee, over whose membership he exercised power of
veto, which was composed of five supervisory employees and two union members
within the appropriate unit and which had no communication with the Union
and its accredited agents and representatives. The undersigned finds that by
taking unilateral action on July 5, 1946, on hours of labor on Saturday (luring
the summer months the Respondent failed and refused to bargain with the
Union which was at that time the statutory representative of the employees
within the defined unit. It is further found that by instigating the formation of
a committee to represent the employees in this matter the Respondent has in-
terfered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2b. The wage increase of October 1, 1946
The Respondent admits that this increase was unilaterally made on the date
stated, It had been preceded by a wage increase on August 2, of 131/2 cents an
hour discussed in detail below, granted to employees of the Respondent outside
the appropriate unit."
Three of the stores :e associated with that of the Respondent in negotiations
continued bargaining after the strike at Respondent's store began on August
5, 1946 In mid-September they entered into contracts which provided a wage
met ease of 15 cents an hour retroactive to May 1. Two other stores 24 agreed
to give the same increase although no contract was executed. The Respondent
-thereupon determined to give each of its employees such a sum that lie or she
would have been paid 15 cents additional for each hour worked since May 1,
1946 Baughan announced this plan in a letter sent on September 25. 1946, to the
=1 The five employees in the narking department were included. As noted above, Daughan
had never conceded that the Union was entitled to represent Mein
28 The two J. C Penney stores and the First Street Store.
21 Wahl and Friemuth.
THE DULUTH GLASS BLOCK STORE COMPANY 1087
Union acid to each employee not currently at work. On October 1 at closing
time a store-wide meeting of employees was held, this letter read to them and
they were assured that they would recei\e similar increases and back pay. The
letter is too lengthy to incorporate here.2' It gave credit to the Union for nego-
tiating the original 131/2 cents an hour increase and explained the additional
cent and a half an hour increase as above set forth Its closing paragraph reads
as follows :
By this action ww e do not intend to limit or foreclose any negotiations be-
tween this company and the union either as to wage rates, or as to any
question in dispute, and it may be understood that your acceptance -end.
cashing of the enclosed check will not prejudice either` the union or yourself
as to any such questions.
Baughan explained this matter in his testimony as follows :
On October 1st, it looked as though the reaching of a settlement with the
union might be quite some distance away and we didn't feel that we could
be paying our sales people 50 cents an hour minimum that were in the
union and the other stores paling the 15 cent increase, so we gave it, gave
the same increase that J. C. Penney did.
This action was token after consultation with McCabe and Howze. It was
Baughan's teshmon' that "both agreed that it was perfectly all right to do so "
The iecuad cont.i:ns no suggestion that the Respondent made any effort to con-
fei with the Union in this matter.
In this state of the record the undersigned finds that the Respondent by uni-
laterally granting the wage increase of October 1, 1946, failed to bargain in good
faith with the Union.
3 Little need be said here concerning the intransigent attitude toward bar-
gaining as to union security adopted by the Respondent after August 5, 1946. All
the various methods of union security: the union shop, originally demanded
by the Union; maintenance of membership; and the service charge, proposed
by the State Fact-finding Commission, have been accepted by all competent
authorities as legitimate devices in adjusting labor relations. They fall well
within the "conditions of employment" phrase used in the Act in defining the
subjects embraced in the phrase "collective bargaining." Churbuck and Baughan,
as the representatives of the Respondent, went beyond mere expressions of
disapproval of such measures and refusals to accept them They declared uun-
equivocally that such matters could not henceforth even be discussed in collective
bargaining conferences. In so doing they clearly refused to bargain on a subject
geimane to collective bargaining. The undersigned so finds.
From the foregoing and the entire record, the undersigned finds that on July
5, 1946, and at all times thereafter, the Respondent has refused to bargain
collectively with the Union as the exclusive representative of its employees, in
an appropriate unit, in respect to rates of pay, wages, hours of employment and
other conditions of employment. By those acts the Respondent has interfered
with. restrained, and coerced its employees in the exercise of the rights guaran-
teed in Section 7 of the Act.
C. The discriminatory increase in wages on August 2, 1916
The Respondent admits that it gave a wage increase of 13% cents an hour on
August 2, 1946, to employees outside the departments which it had conceded that
25 It is attached as "Appendix B-1."
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union was entitled to represent. The increase was made effective in the
marking department 26 Employees affected also received checks for back pay
covering this increase retroactive to May 1, 1946. Baughan testified regarding this
action as follows :
We recognized long before the contract was opened that wages should be
increased and we were more sure of it in July, when the OPA was taken off
and the cost of living looked like it was going to soar considerably, and that is
why I might say that we were very glad to give the increase in wages, we felt
they had it coming; negotiations were carried on from May 1st to August 1st
with no settlement having been reached up to May 21st, or whatever date that
was, and we felt,that the people should have this increase in salary and on
July 31st, I thought it was just a question of hours or maybe days that they
would all get a raise and we decided we would give those without the unit the
raise as of August 1st.
In granting this advance in wages Baughan as lie testified followed the advice
of his counsel McCabe. McCabe, in unassailed and credited testimony, corrob-
orated Baughan. McCabe's testimony, in part, reads,
Alr Baughan asked me 2 or 3 weeks before whether he could legally make
all increase to the employees not represented by the union, I think we even
talked about an increase to those in the union, but I told him that I felt lie
could legally make the increase to the employees that the union slid not include
or represent, but in my opinion it would be an interference with union activi-
ties if he granted an increase to the union employees when they were in nego-
tiation with them ; I felt it was a matter that should be consummated with the
union and not be done unilaterally.
As set forth above, Baughan attended the conference called by Commissioner
Broad on July 31, 1945, at which time agreements or compromises on all the major
points of difference were reached. He left Duluth that same night and gave
instructions just before his departure to grant an increase of 131/1 cents all hour
to employees not represented by the Union and to make tlii. increase retroactive
to May 1, 1946 He (lid so in the expectation that a new contract carrying similar
provisions for those represented by the Union would be executed almost immedi-
ately The Union's action in rejecting the proposed conti act and calling a strike
on August 5 defeated this expectation. In the outcome the employees working in
departments represented by the Union, except for the employees in the marking
department, found themselves receiving 131/z cents an hour less than those outside
the Union's representation. Moreover they did not get back pay which their
associates outside the unit represented by the Union received, at the new rate per
hour for time worked from May 1, 1946, to August 2, 1946 This situation mani-
festly was a potent object lesson on the disadvantages incident to Union repieseu-
tation. Baughan's action discouraged membership in the Union and, the under-
signed finds, was in derogation of Section S (3) of the Act.
In defending its action in granting increased wages on August 2, 1946, to
employees not represented by the Union, Respondent's brief cites the decision
of the United States Circuit Court in the Appalachian Elects is Power Co. case"
The undersigned finds this case easily and clearly distinguishable. In the cited
29 McCabe testified, "The Marking Department was a mystery all through this thing
McIver never produced his cards on the marking department and never made
a demand for the narking department
27140 F. (2d) 217
THE DULUTH GLASS BLOCK STORE COMPANY 1089
case all the employees of one of two plants separated by over 50 miles were
granted increased wages. In the second plant negotiations with the Union were
to commence shortly after certification by the Board. In the instant proceeding,
due to acts of the Respondent, the employees under the Union's representation
found themselves working at the old wage and in the same store with employees
whose wages had been increased by 131/-, cents an hour This disparate treat-
ment continued from August 2 to October 1, 1946, a period-of 2 montlis. The
Respondent admittedly made no effort to correct this discriminatory; treat-
ment through direct negotiations with the Union. '
The undersigned finds that by its action in granting an increase in wages to
its employees not represented by the Union and failing to give a similar increase
to those for whom the Union was the statutory representative ; by permitting the
discriminatory condition to continue for 2 months and by failing to attempt
negotiation with' the employees' statutory representative for the correction of
such discrimination, the Respondent discriminated ,in regard to hire and tenure
of employment and the terms or conditions of employment thereby discouraging
.membership in a labor organization in violation of Section 8 (3) of the Act.'
D Further acts of interference, restraint, or coerc.on -
Lucille Peterson, an employee in t1'e bakery department, joined the Union
on March 6, 1946. Shortly thereafter the employees in this department were
told by their "boss," Evelyn Anderson, as Peterson's uncontroverted and cerdited
testimony reads,
She [Anderson] told us girls we had done the wrong thing, that Mr.
Baughan told her we were cutting our own throats by jomium the clerks'
union and that if we wanted to get our initiation fees back of three dollars,
he'd halve an attorney to get it back for us and none of us girls wanted to
apply to that statement that she made
Nancy Hang, a supervisor in the alteration department, joined the Union in
March 1946 A week later she was called to Baughan's office. Excerpts from
her unassailed and credited testimony regarding her conversation with him are
recorded as follows,
He [Baughan] asked me about some work concerning the department and
after we were through discussing that why he said to me, "I understand
you joined the Union."
* * *
And I said yes, we did, we have all joined of our own free will and no one
had interviewed us at at all.
. . . of course, I told him why we joined and he said he wished I'd have
come to him about it, that he could have done something for us.
Hilja Heino, an employee in the bakery department with 23 years service,
joined the Union on March 6, 1946. Thereafter she was called to Baughan's
office in the presence of Miss Holmes, personnel manager. Heino's uncontro-
verted and credited testimony reads,
He [Baughan ] just say I heard you girls had joined the union, and I say
yes, and then he say, "I don't have nothing against the union; but you should
join the bakery union, not for clerks' union," then he say if we will drop
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the union now then we [can't] keep you in jobs either because they have to
fire us out 28
There was Miss [Holmes] too in Baughan's office and she say if you girls
wants more wages why don't you go and ask Mr Baughan, he fix you up.
On July 2, 1946, when Tollund was first called upon to assist in the Saturday
closing matter, she was questioned by Baughan as to her attendance at union
meetings. He then read to her a clause, presumably from the Union's proposed
contract, on seniority rights and assured Tollund, in case she left her department
this clause would require the Respondent to bring in the employee with highest
seniority in the store, "whether she was a baker, a dishwasher, or from the
marking department."
Similar in character were statements made to Alice Talso, a clerk in the leather
goods department by Merchandise Manager Lucile Albertson. On July 6, Talso's
immediate supervisor, Dorothy M. Scarlett, told her, as Talso's credited testimony
is recorded, that Albertson "was having a meeting about the union and we were,
to take turns in going to see her." Talso's further testimony reads,
Well, [Albertson] said, "I don't see why the other stores want to drag the
Glass Block into their difficulties with the Union, why don't they leave us
alone?"
... that if we were in the union it would cost us about $18 00 a year and
why should we when we can get the same wages without belonging to that
union
Then she spoke of her daughter, she said, -`Just think, my little daughter
Mary would be getting the same wages as you girls that have worked in
the store for many years."
Well, she says even if we didn't join that we'd be getting a raise
About 1 to 2 weeks before August 5, 1946, Baugban called Tollund to his office.
After stating that he had heard that McIver, the Union business agent, had been
in to see Tollund and receiving an affirmative reply Baughan stated, as Tollund's
credited testimony is recorded,
He said well, he wouldn't do any further business with Mr McIver, he
said if we put a man like Van Steelworth at the head of the union, he'd talk
to him because he could reason with him and he said, "I hate McIver and
McIver hates me." 29
Mable Haug, an employee in the marking department, gave uncontroverted and
credited testimony to the effect that her immediate supervisor, Mary Spooner,
called her by-telephone in August while Haug was on strike. Haug's testimony
as to what Spooner said as far as it is in point here reads,
Well, Mr. Baughan had asked her to call all the girls back in the marking
room and there was a lot of merchandise coming in and he wanted to get
28 As these excerpts indicate, Heino had difficulty in expressing herself clearly in the
English language In cross-examination, this statement was clarified, "He said after you
joined the union if you resigned or quit he couldn't continue to employ you," Heino assented.
19 Later Tollund was requested to give Baughan's "exact words." Her reply reads,
Well, at that time he told me he said he wouldn't sit down and talk with Mr. Mc-
Iver. . . . well if we'd get somebody like Van Steelworth at the head of the union
he would sit down and talk it over with him.
THE DULUTH GLASS BLOCK STORE COMPANY o 1091
ready and they had some gills there at the time but they wouldn't be staying
so he was giving us first chance at coming back, and if we didn't why they'd
have to call in otheis . . . because he wasn'-t signing for the union shop.
As noted above, in another connection, certain letters of resignation from the
Union were written by Respondent's Information Clerk at the direction of its
Personnel Manager Benson. Four of these letters are substantially identical
in phraseology, dates, make-up and punctuation. They read as follows,
DULUTH, MINNESOTA, August 19, 1946.
i11r. DAN MCIVEUS (Sic)
Business Agent, Retail Clcr1,s Local Union No. 3
Labor Temple, Duluth, Minnesota
DFAR Slit: I hereby resign my membership in the Retail Clerks' Union
Local No 3, as of today, August 19, 1946
Yours very truly
These letters are signed, in addition to Mencel and DeVitis, by Agnes Krizaj
and Jean Johnson In each case the signer's address is given. The four en-
velopes are also alike in set-up both as to the return address and the address
form Both in the salutation and on the envelopes McIver's name is misspelled.
The envelope carrying the resignation letters of Mencel, Krizaj, and DeVitis carry
consecutive post office registration numbers, 5893, 5894, and 5895. Johnson's
letter was dated August 20, 1946, and carried registration number 5909 Mencel
testified that Krizaj's letter was written at the same time as that of herself and
DeVitis and that these three employees mailed their letters at the same time and
place. She further testified that Benson had the Information Clerk prepare all
of them at the same time. The close similarity of Johnson's letter and its en-
velope to those of the other three employees justifies the inference, made by the
undersigned, that it was written under exactly similar conditions. As set forth
above, the signing of these letters by Mencel and DeVitis was a required precedent
to their reemployment after engaging in the strike. Such interference with union
membership is a palpable act of interference, restraint, and coercion. The under-
signed so finds.
In a letter dated September 3, 1946, and sent to the Union for Melvei's atten-
tion, Bauglian stated the Respondent's position at length," combatting the Union's
claim that he had committed unfair labor practices and stating the Respondent's
willingness to write the following terms into a collective bargaining contract:
We agree that we will never "discriminate against Union employees
We agree to "bargain in good faith with Union representatives." We agree
that we will never "spy on Union members and Union activities." We agree
that we will never "influence employees not to join the Union" We agree
that we will never place into effect any wage increase during negotiations
for employees that you represent, except upon agreement with the Union.
We agree that we will not permit any supervisor to "engage in anti-union
activities" (The quotations are from your statements of August 22, 1946
at the conciliation hearing and from your statements from the "Labor World"
of August 29, 1946 ) We also agree that we will not engage in an inter-
ference of any kind with union activity or organization.
In addition to the above, we agree that we will bargain with the Union
at any time in order to settle any other issues that may exist between the
Glass Block and the Union
10 The letter is appended as "Appendix B-2."
781902-48-vol. 76-70
1092 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Furthermore, we now make you an unconditional offer of reinstatement of
all employees who are out on strike. Every employee who went out on
strike may come back to•work•, and we assure you and them, as we have
previously, that we will never discriminate against them for union activities
or for going out on strike.
Having accepted your offer in full, we assume that you will want the em-
ployees to return to work immediately They are free to do so .
At this time the Respondent sent each of its employees on strike a copy of the
letter to the Union with a covering letter, the significant paragraphs of which
read as follows :
Pursuant to the above letter, you are hereby offered reinstatement to the
same position which you held before on went on strike. This offer is un-
qualified and without any cordition whatsoever Anyone assuming to say
that any conditions are attached to this offer has no authority to act or
speak for the Glass Block. You will not be discriminated against in any
way for union activities or for participation in the strike.
The last paragraph of the above letter will explain to you why it is neces-
sary to make this offer of reinstatement directly to you. However, as you
will see from the above letter, we have communicated the offer to the Union,
so that your representatives will be fully informed of the offer and in
order that you may discuss it fully with therm before acting on this offer.
We hope that by doing this we may be able to end the present existing
controversy.
No finding adverse to the Respondent is here made with reference to the
letter of September 3, 1946, addressed to Mclver This was a legitimate move
in the course of negotiations with a statutory representative. However in send-
ing the same communication to each union member on strike, the Respondent
did not adhere to the Act's mandate that the Union was to be their "exclusive
representative." Respondent's letter to these employees further clearly suggests
that the employees addressed could act on its offer whether or not their exclusive
representative approved. By such direct negotiations with the employees and
interference with the relations between the employees and their exclusive repre-
sentative the Respondent committed an unfair labor practice within the meaning
of Section 8 (1) of the Act
By these utterances of Respondent's President Bauglian, and supervisors,
Anderson, Albertson, and Spooner; by direct interference in inducing defections
from the Union and making resignations from the Union a prerequisite for the
reinstatement of strikers, by Baughan's letter of September 3, 1946, sent to each
of the strikers, by instigating the setting up of a committee to confer in the matter
of Saturday closing; by discriminatorily granting increases in wages to em-
ployees not represented by the Union and by refusing to bargain with the Union,
the Respondent has interfered with, restrained, and coerced its employees
within the meaning of Section 8 (1) of the Act.
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 described in Section I,
THE DULUTH GLASS BLOCK STORE COMPANY 1093
above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to labor disputes which
burden and obstruct commerce and the free flow of commerce.
V THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, the undersigned will recommend that it cease and desist therefrom and
take certain affirmative action found necessary to effectuate the policies of
the Act.
The undersigned has found that the Respondent from July 5, 1946, and at all
times thereafter, refused to bargain collectively with the Union as the exclusiN e
representative of the Respondent's employees within an appropriate bargaining
unit although the Union was the statutory representative of the employees for
the purposes of collective bargaining It will accordingly be recommended that
the Respondent be ordered to bargain collectively with the Union.
The immediate cause of the strike on August 5, 1946, was the Respondent's action
in gianting a wage increase to its employees in departments which it did not re-
gard as NNithin the Union's jurisdiction as exclusive representative while with-
holding it similar increase from the employees represented by the Union. This
discrimination was maintained for a period of 2 months. As set forth above,
this action was found to be discriminatory and violative of Section 8 (3) of the
Act The ,take was prolonged by the intransigent position adopted by the Re-
spondent in retusing to bargain with the Union on any form of union security and
b,i other nets detailed above Since the strike resulted from, and was pro-
longed by, unfair labor practices of the Respondent, it will be recommended that
the Board order the Respondent to offer the employees on strike, upon their Vin-
conditional application, immediate and full reinstatement to their former or sub-
,tantnilly equivalent positions without prejudice to their seniority or other rights
and privileges they may have, dismissing if necessary any employees hired since
Ancust 5, 1946, to till the places which these striking employees previously had
held If after this is clone it appears that because of reduction in the volume of
1:e,poudent's business, or other legitimate cause, there is not sufficient employ-
ment nnmediately available to allow that all the employees who struck on August
5, 1940, be offered immediate reinstatement, all available positions shall be chs-
ti ibuted in accordance with Respondent's usual methods as applied prior to
August 5, 1946, without discrimination against any employee because of his union
affiliation or activities, following a system of seniority to such extent as had
been applied in the conduct of Respondent's business prior to August 5, 1946
Those employees remaining, if any, after such distribution, for whom employ-
ment is not immediately available, shall be placed upon a preferential list pre-
pared in accordance with the principles set forth above and shall thereafter be
offered employment, in accordance with such list, in their former or substan-
tially equivalent positions as such employment becomes available and before
other persons are hired for the work which they had formerly done.
The undersigned will further recommend that the Respondent be ordered to
make whole those employees who went on strike on August 5, 1946, for any loss of
pay they may suffer by reason of Respondent's refusal, if any, to reinstate them
as provided above, by payment to each of them of a sum of money equal to
that which he normally would have earned as wages during the period from flee
(5) days after the date on which he applied for reinstatement to the date of the
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 's offer of reinstatement, or placement on a pieferential list, less
his net earnings ,°' if any, during said period
The undersigned is convinced that these acts of the Respondent are persuasively
related to the other unfair labor practices proscribed by the Act. Danger of their
commission in the future is to be anticipated from the unlawful conduct proven
in this proceeding and the preventative purposes and policies of the Act and the
interdependent guarantees of Section 7 will be rendered ineffective unless the
Board's order is coextensive with the threat n The undersigned will therefore
recommend that the Board order the Respondent to cease and desist from in
any other manner infringing upon the statutory rights of its employees
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Retail Clerks Local Union No 3, affiliated with the American Federation of
Labor, is a labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminating on August 2. 1646 , in regard to the hire and tenure of em-
ployment and the terms and conditions of employment of its employees, the
Respondent has engaged in and is engaging in unfair labot practices within the
meaning of Section 8 (3) of the Act
3. All selling employees and all employees in the marking, alteration and baking
departments at Respondent ' s Store , exchuLng supervisory employees and trances
for supervisory positions , constitute a unit applopriate for the purpose. ,it col-
lective bargaining within the meaning of Section 9 (b) of the Act
4. Retail Clerks Local Union No . 3 was on May 14 , 104(1, and at all times
thereafter has been, the exclusi ve representative of all emplo' ees in the afore-
said unit for the purposes of collective bargaining with respect to rates of pay,
hours , wages and other conditions of employment.
5 By refusing to bargain collectively -with the Union on July 5, 1940. and at
all times thereafter as the exclusive representative of the employees in the abo^ e
described unit, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 ( 5) of the Act.
6 The Respondent has interfered with , restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act and has thereby
engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7 ) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the
undersigned recommends that the Respondent, The Duluth Glass Block Store
Company and its officers, agents, succe§sors, and assigns shall: '
31 By " net earnings " is meant eainings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
wheic than for the Respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company, 8 N. L. R B 440. Monies received for work performed
upon Federal , State, county , municipal , or other work-relief projects shall be considered as
cainings See Republic Steel Corporation v N. L. R. B., 311 U. S. 7.
33 See N. L R B v Express Publishing Co., 311 U. S. 426, May Department Stores v.
N. L. R. B., 326 U . S. 376.
THE DULUTH GLASS BLOCK STORE COMPANY 1095
1. Cease and desist from:
(a) Refusing to bargain collectively with the Retail Clerks Local Union
No. 3 as the exclusive representative of all its employees in its selling force
and bakery , alteration and marking departments , excluding supervisors and
trainees for supervisory positions , with respect to rates of pay, wages, hours
of employment or other conditions of employment;
(b) Discouraging membership in the Retail Clerks Local Union No. 3 or
any other labor organization by discriminating in regard to the hire and tenure
of employment of its employees ;
(c) In any other manner interfering with, restraining or coercing its em-
ployees in the exercise of the right to self -organization , to form, join or assist
the Retail Clerks Local Union No. 3, or any other labor organization , to bar-
gain collectively through representatives of their own choosing and to engage
in concerted activities for the purpose 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 undersigned finds will
effectuate the policies of the Act :
(a) Upon request bargain collectively with the Retail Clerks Local Union
No 3 as the exclusive representative of all its employees within the aforesaid ap-
propriate unit with respect to rates of pay, wages , hours of employment or other
conditions of employment , and if an understanding is reached embody such
understanding in a written signed agreement;
(b) Upon their application , offer reinstatement to the employees who went
on strike August 5, 1946 , in their former or substantially equivalent positions
without prejudice to their seniority and other rights and privileges, in the
manner provided in the section of this Intermediate Report entitled "The
remedy"
(c) Make whole these employees for any loss of pay they may have suffered
by reason of Respondent 's refusal , if any, to reinstate them pursuant to para-
graph 2 ( b), above, by payment to each of them of a sum of money equal to
that which lie normally would have earned as wages during the period from
five ( 5) days after the date on which he applied for reinstatement to the date
of Respondent 's offer of reinstatement, or placement on a preferential list,
less his net earnings ," if any, during said period;
(d) Post at its store in Duluth , M inuesota , copies of the notice attached
heieto marked "Appendix C ." Copies of said notice , to be furnished by the
Regional Director for the Eighteenth Region, after being signed by the Re-
spondent's representative , shall he posted by the Respondent immediately upon
the receipt thereof, and maintained by it for sixty (60 ) consecutive days there-
after , in conspicuous places, including all places where notices to employees are
custuina i ily posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered , defaced or covered by any other material;
(e) Notify the Regional Director for the Eighteenth Region in writing , within
ten (10 ) days from the date of the receipt of this Intermediate Report, what steps
the Respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report , the Respondent notifies said Regional Direc-
tor in writing that it will comply with the foregoing recommendations , the National
Labor Relations Board issue an order requiring the Respondent to take the action
aforesaid.
11 See footnote 31, above
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As provided in Section 203 39 of the Rules and Regulations of the National Labor
Relations Board , Series 4. effective September 11, 1946, any party or counsel for
the Board may, within fifteen (15 ) days fiom the date of the service of the order
transferring the case to the Board , pursuant to Section 203 38 of said Rules and
Regulations , file with the Board. Rochambeau Building, Washington 25, D. C., an
original and four copies of a statement in writing setting forth such exceptions to
the Intermediate Report or to any other part of the record or proceeding ( includ-
ing rulings upon all emotion. or obj ections) as he relies upon , together with the
original and four copies of a brief in support thereof , and any party or counsel for
the Board may, within the same period , file an original and foul copie'1 of a brief
in support of the Intermediate Report immediately upon the filing of such state-
ment of exceptions and/or briefs , the party or counsel for the Board filing the same
shall serve a copy thereof upon each of the other parties and shall file a copy with
the Regional Director . Proof of service on the other parties of all papers filed with
the Board shall be promptly made as required by Sa ction 203 65 As flu Cher
provided in said Section 203.39. should any party desire permission to argue orally
before the Board , request therefor must be nude in writing to the Board within
ten (10 ) days from the date of service of the older transferring the case to the
Board.
Crr_,oei.Es E. PEi.soNS.
Trial Exnunrner.
Dated February 20, 1947
APPENDIX A
PAY Rorr. Li ,T FOR MAY 17, 1946
A Selling Employees
1
Union members
Thom 1
_Non-Unon
Dcgen
2 Barker 2. Yelinan
3 Saari 3 Pucci
4 Pope 4 Olszew.ki C.
5. Dnrfee 5 McLeod
6 Noi ris 6 .Johnson, Jeanne
7 McKenzie 7 Mahoney
8 Johnson, Marie 8 Symons
9. Anderson, Ruth 9. Barsness
10. Talso 10 Fleer
11. Pearling 11 Gonthier
12. VVirta 12 Freeman
13. Kively 13 Clark
14 Krizaj 14 Kugel
15 McNabb 15. Soberg
16 Pelander 16 Wagonaar
17 Dumonthier 17. Welsh
18 Westrom 1S McLean
19 Green 19 llevei s
20 Trader 20 Rinn
21 Tierney 21 Paap
22 Jovin 22 Olszewsk'. R.
23 Rosenberger 23 Lindgien
THE DULUTH GLASS BLOCK STORE COMPANY 1097
PAY ROLL LIST Foil MAY 17, 1946-Continued
A. Selling Employees-Continued
Union members
24. Brown, Ann
25. Carlson
26. Storms, Gertrude
27. Craker, Clarice
28 Harlock, Carrie
29 Soderberg, Hulda
B.
Union
1 Degnan
2. Haug, Mabel
3. Anderson, Lucille
Union
1. Rotvig
2. Hanger
3. McShane
4 Franke
Non-Union
24 Angel
25. Degner
26. Buckey
27 Kelly
28. McSwiggin
29. Matheson
30 McKeever
31 Arkkola
32 Carlsness
33 Mencel
34. Brown, Patricia
Marking Department Employees
Non-Union
1. Beard
2 Peterson, R
C. Alteration Department
1. Dillan
Non-Union
D. Bakery Employees
Union Non - U111011
1. DeSanto 1. Zigment
2 Henio
3 Larson
4 Maki
5. Mickila
6. Peabody
7. Lame
8 Hekkola
9 Peterson , Lucille
Suminary
1
Departments : U111o11 Non - Union Total
Selling -------------------------------- 29 34 63
Marking --- ---------------------------- 3 2 5
Alteration ----------------------------- 4 1 5
Bakery ---------- --------------------- 1 10
45 38 83
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
PAY ROLL LIST FOR JULY 17, 1946
A. Selling Employees
Union Non-Union
1. Thom 1. Degen
2. Barker 2. Carlson, Edith
3. Saari 3 Ciesla
4. Pope 4. Pucci
5. Durfee 5. Olszewski, C.
6. Norris 6 McLeod
7. McKenzie 7 Johnson, Jeanne
8. Johnson, Marie 8 Mahoney (July 26)'
9. Anderson, Ruth 9 Symons
10. Talso 10 Barsuess (July 26)
11. Virta 11. Fleer
12. Pearling 12. Freeman
13. Kively 13 Gonthier
14. Krizaj 14. Clark
15. McNabb 15 Kugel
16 Pelander 16 Swift
17 Dumonthier 17. Wagonaar
18. Westrom 18 Bawden
19. Green 19 Welsh
20. Trader 20 McLean
21. Storms 21. Meyers
22 Tierney 22. Rinn
23. Jovin 23 Soberg
24. Brown, Ann 24 Paap
25. Carlson, Jeanne 25 Olszewski, R.
26 Craker, Clarice 26 Lindgren
27 Harlock, Carrie 27. Angel
28. Soderberg, Hulda 28. Buckey
29 Kelly
30. McSwiggm
31 Matheson
32 McKeever
33 Arkkola
24. Silvia
35. Mencel
36 Brown, Patricia
B. Marking Department Employees
Union
1. Degnan
2. Haug, Mabel
3 Anderson, Lucille
Non-Union
1. Beard (July 29)
1 Dates are those on which the employees indicated joined the Union.
THE DULUTH GLASS BLOCK STORE COMPANY
1. Rotvig
2. Hanger
3 McShane
4. Franke
PAY RoLL LIST FOR JULY 17, 1946-Continued
C. Alteration Department Employees
Union
Union
1. DeSanto
2. Heino
3. Larson
4. Maki
5. Mickila
6 Peabody
7. Laine
8. Hekkola
9. Peterson, Lucille
1. Dillan
D.
Non-Union
Bakery Department Employees
Non-Union
1. Zigment
Summary
1099
Union Non-Union Total
Departments : -
Selling -------------------------------- 28 36 64
Marking ------------------------------ 3 1 4
Alteration ----------------------------- 4 1 5
Bakery -------------------------------- 9 1 10
44 39 83
PAY RoLL LIST FOR AUGUST 1, 1946
A. Selling Employees
Union Non-Union
1. Thom 1. Degen
2. Barker 2. Carlson, Edith
3. Saari 3. Ciesla (Aug 5)
4. Pope 4 Pucci
5 Durfee 5. Olszewski, C.
6 Norris 6. McLeod
7. McKenzie 7 Symons
8 Johnson, Marie 8 Fleer
9 Anderson, Ruth 9 Sknpas (Aug 5)
10. Mahoney (July 26) 10 Fowler
11 Craker 11. Gonthier
12 Talso 12. Clark
13. Barsness (July 26) 13. Angel
14. Pearling 14 Swift
15 Virta 15. Kugel
16 Kively 16. Wagonaar
17. Krizaj 17. Bawden
18 McNabb 18 Welsh (Aug. 5)
19. Pelander 19'. McLean
20 Dumonthier 20. Soberg
21. Westrom 21. Rinn
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
PAY ROLL L7sT FOR AUGUST 1, 1946-Continued
A. Selling Employees-Continued
Union
22. Green
23. Trader
24. Olson, Doris or Lois (July 29)
25. Jovin
26. Tierney
27. Storms
28. Brown, Ann
29. Soderberg
30. Harlock
31. Ciesla
32. DeVitis, Corinne
33. Johnson, Jeanne
34 Kelly, Mary
35. McSwiggin
36 Mencel, P
37. McKeever
38 Skupas, Jane
39. Welsh,-Eileen
40 Brown, Patricia
Non-Union
22 Paap
23. Olszewski, R.
24. Lindgren
25. Freeman
26. Holzmer
27. Buckey
28. Kelly (Aug 5)
29 McSwiggin (Aug. 5)
30 Matheson
31.Johnson, Jewel
32 McKeever (Aug. 5)
33 Silvia
34. Arkkola
35 Cargill
36. Strowger
37. Johnson, Stella
38. Wolfenden
39 Mallinen
40. McCarter
41. Mencel (Aug. 5)
42. Johnson, Jeanne (Aug. 5)
43. DeVitis, Corinne (Aug. 5)
44 Brown, Patricia (Aug 5)
B. Harking Department Employees
Union
(None)
Non-Union
I Degnan
2 Beard (July 29)
3. Haug, Mabel
4 Anderson, Lucille
C. Alteration Department Employees
Union
1. Rotvig
2. Hanger
3. McShane
4. Franke
1 Dillan
Non-Union
D. Bakery Department Employees
Union
1 DeSanto
2. Heino
3 Larson
4. Mickila
5. Maki
6. Peabody
7. Lathe
8. Hekkola
9. Peterson, Lucille
Non-Union
1 Zigment (Aug. 5)
THE DULUTH GLASS BLOCK STORE COMPANY
PAY ROLL LIST FOR AUGUST 1, 1946-Continued
Summary ( August 1)
1101
Departments: Union Non-Union Total
Selling -------------------------------- 30 44 74
Marking ----------- ------------------- 4 0 4
Alteration ----------------------------- 4 1 5
Bakery ------------- ------------------- 9 1 10
47 46 93
Su
Departments :
mma y (August 5)
Union Non-Union Total
Selling -------------------------------- 40 34 74
Marking ------------------------------ 4 0 4
Alteration ----------------------------- 4 1 5
Bakery --------------- ---- 10 0 10
58 35 93
APPENDIX B-1
Mrs. GLADYS JOVIN
1011 West Fri St St., Duluth, Minnesota.
DEAR MRS. JovIN : As a result of negotiations between this company and Local
#3, International Clerks Protective Association, this company some weeks ago
offered to include in any contract arrived at a provision for a general increase of
131/2¢ per hour in the base pay of all employees represented by the union, retro-
active to May 1, 1946, quota bonuses to be readjusted to the increased base pay in
accordance with our long established practices.
We are now further advised that the two J. C. Penney Stores have contracted
with this union on the basis of a general increase in base pay of 15¢ per hour and
that other principal retailers have offered the union a similar increase, all retro-
active to May 1, 1946.
No contract has been arrived at between this company and the union because of
fundamental differences as to the necessity and propriety of certain provisions for
union maintenance which are demanded by the union, and as a result of the fore-
going the date when a contract can be finally concluded seems very indefinite.
In view of these facts and of the fact that it has been our uniform policy to pay
wages as high or higher than those generally paid for similar services, we have
determined, without waiting for the conclusion of a contract with Local #3, to
now extend to all of our employees paid on an hourly basis an increase of 15¢ per
hour over their base pay as the same existed on May 1, 1946. Quota bonuses will
be readjusted to the increased base pay in accordance with our long established
practices
This increase in base pay will apply to all hours actually worked for us since
May 1, 1946 by all of our employees paid on an hourly basis, and there will be no
discrimination on account of union membership, participation in the existing
strike, or any union activity.
A check for the amount due you on account of the application of this increased
hourly rate to all hours worked by you for us since May 1, 1946, is enclosed
herewith
By this action we do not intend to limit or foreclose any negotiations between
this company and the union, either as to wage rates, or as to any question in
1102 DECISIONS OF NATIONAL LABOR RELATION'S BOARD
dispute,, and it may be understood that your acceptance and cashing of the enclosed
check will not prejudice either the union or yourself as to any such questions.
Sincerely,
DULUTH GLASS BLocic STORE COMPANY,
By (S) JAY BAUGHAN.
APPENDIX B-2
DULUTH GLASS BLOCK STORE COMPANY,
Duluth 2, Minnesota, Septembei 3, 19%G.
RETAIL CLERKS' UNION No. 3
Labor Temple, 320 West Fost Street, Duluth, Minnesota
(Attention: Mr. Dan McIver.)
DEAR MR. McivER: This letter is written to the Union, in its capacity as bar-
gaining agency, and to you in your official capacity as Business Agent for the
Union.
On August 22, 1946, at a conciliation meeting called by the State Conciliator,
In Room 315 Builders Exchange Building, you made the following statement to
the management and to Mr Leonard Johnson, State Labor Conciliator :
"The current strike at the Glass Block was caused by unfair labor prac-
tices."
You numerated the following, which you claimed were the untair labor practices
which caused the strike :
1. "Influencing employees not to join the Union."
2 "Placing into effect a wage increase winch was being negotiated Giving
to non-union employees wages which were at issue."
3. "Supervisors engaging in anti-onion activities "
In the "Labor World" of August 29, 1946, the Union is quoted as follows
"The union declares that the strike at the Glass Block was caused entirely
by the unfair labor practices of management:
"1. Discriminating against union employees.
"2. Failing to bargain in good faith with union representatives.
"3. Spying on union members and union activities
"The union added : The strike will end the day the Glass Block manage-
ment will give the union security that these practices will be discontinued."
The Glass Block does not admit the above claimed unfair labor practices
1. We did not influence employees not to join the Union.
2 We placed into effect a wage increase of 131/ cents only after we had first
offered the increase to the Union, and we granted the increase only to the
employees that the Union did not represent. We put into effect the increase to
employees not represented by the Union at least two weeks after we had made
the same wage offer to the Union. To repeat, we made the offer to the Union
and we put the wage into effect as to employees which the Union did not represent
at least two weeks after we had offered to give it to the Union.
However, you state :
"The strike will end the day the Glass Block ianagement will give the
Union security that these practices will be discontinued.- (Labor World,
August 29, 1946).
THE DULUTH GLASS BLOCK STORE COMPANY 1103
As the Glass Block never has and never will commit unfair labor practices,
it is easy for us to agree to the demands which you made for the ending of the
strike. Accordingly, we hereby make to the Union the following offer, which
we are willing to incorporate into a collective bargaining contract:
We agree that we will never "discriminate against Union employees." We
agree to "bargain in good faith with union representatives." We agree that we
will never "spy on union members and union activities." We agree that we
will never "influence employees not to join the Union." We agree we will
never place into effect any wage increase during negotiations for employees that
you represent, except upon agreement with the Union. We agree that we will
not permit any supervisor to "engage in anti-union activities." (The quotations
are from your statements of August 22, 1946 at the conciliation hearing and
from your statement from the "Labor World" of August 29, 1946.) We also agree
that we will not engage in an interference of any kind with union activity or
organization.
In addition to the above, we agree that we will bargain with the Union at
any time in order to settle any other issues which may exist between the Glass
Block and the Union.
Furthermore, we now make to you an unconditional offer of reinstatement of
all employees who are out on strike. Every employee who went out on strike
may come back to work, and we assure you and them, as we have previously,
that we will never discriminate against them for Union activities or for going
out on strike. This offer is made to you in order to accept your offer made public
through the "Labor World" of August 29, 1946.
Having accepted your offer in full, we assume that you will want the em-
ployees to return to work immediately. They are free to do so. They will be
welcome back and all of the safeguards which we have agreed to above will
be applied to them. Thus, we hereby offer each and every employee, through
you as their bargaining representative, an unqualified and unconditional offer
of reinstatement to the positions held by them from the day the strike started.
We make this offer through the Union, but as the law requires us to make
offers of reinstatement directly to employees, we are also sending them a copy
of this letter, with a direct offer of reinstatement.
We also assure you that if your Union sees fit to have the employees return to
work at this time, we are willing to bargain with you in good faith in an honest
attempt to resolve any remaining issues between us.
Very sincerely yours,
THE GLASS BLOCK STORE,
By JAY BAUGHAN, President.
APPENDIX C
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist RETAIL CLERKsi LOCAL UNION No. 3, or any
other labor organization, to bargain collectively through representatives
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of their own choosing, and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection.
WE WILL OFFER. to the employees who went on strike on August 5, 1946;
upon their application immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to any seniority or
other rights and privileges previously enjoyed.
WE WILL BARGAIN collectively upon request with the above-named union as
the exclusive representative of all employees in the bargaining unit described
herein with respect to rates of pay, hours of employment or other conditions
of employment, and if an understanding is reached, embody such under-
standing in a signed agreement. The bargaining unit is :
All selling employees and all employees in the marking, alteration and
baking departments at Respondent's store, excluding trainees for super-
visory positions and all supervisory employees with authority to hire, pro-
mote, discharge, discipline, or otherwise effect changes in the status of
employees or effectively recommend such action.
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
DULUrhI GLASS BLOCK STOKE COMPANY.
Einployer.
By -----------------------------------------
(Representative ) (Title)
Dated ----- -------------------
NOTE: Any of the above-named employees presently serving in the Armed
Forces of the United States will be offered full reinstatement upon application in
accordance with the Selective Service Act after discharge from the Armed Forces.
This notice must remain posted for 60 days from the (late hereof, and must
not be altered, defaced, or covered by any other material.