Cottman Builders Supply Co., Inc.

COTTMAN BUILDERS SUPPLY CO., INC. 327 instructed to issue a certification of representatives to such labor or- ganization or organizations for such unit or units, which the Board, under the circumstances, finds to be appropriate for the purposes of collective bargaining. [Text of Direction of Elections omitted from publication in this volume.] COTTMAN BUILDERS SUPPLY CO., INC. and JOSEPH KERESTY, JR. GENERAL TEAMSTERS, CHAUFFEURS, HELPERS AND YARDMEN LOCAL UNION No. 470 AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL and JOSEPH KERESTY, JR. Cases Nos. 4-CA-549 and 4-CB- 103. November 18, 195,191 . Decision and Order On March 31, 1952, Trial Examiner Louis Plost issued his Inter- mediate Report in the above-entitled proceeding, finding that Respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy Hof the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief, and the Respondent Union filed a brief in reply to the General Counsel's exceptions and brief. No exceptions were filed by the Company. The Board 1 has reviewed the rulings made by the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case and -hereby adopts the findings, conclusions, and recommendations of the "Trial Examiner. Order Upon the entire record in the cases and pursuant to Section 10 (c) .of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : 1. Respondent Company, Cottman Builders Supply Co., Inc., .Philadelphia, Pennsylvania, its officers, agents, successors, and assigns, :shall : I Pursuant to the provisions of Section 3 (b) of the Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel [Chairman Herzog and Members Styles and Peterson]. 101 NLRB No. 96. 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a. Cease and desist from : (1) Encouraging membership in General Teamsters, Chauffeurs, Helpers and Yardmen Local Union No. 470, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, or in any other labor organization of its employees, by discharging any of its employees or discriminating in any other manner in regard to their hire or tenure of employment, or condition of their employment, except to the extent authorized by Section 8 (a) (3) of the Act. (2) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to engage in or to refrain from engaging in activities guaranteed them by Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act. b. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Make whole Joseph Keresty, Jr., in the manner set forth in section V of the Intermediate Report entitled "The Remedy." (2) Upon request, make available to the Board or its agents for examination or copying all payroll records, social security payment records, time cards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due under the terms of this order. (3) Post at its plant at Philadelphia, Pennsylvania, copies of the notice attached to the Intermediate Report marked "Appendix A." 2 Copies of said notice, to be furnished by the Regional Director for the Fourth Region, shall, after being duly signed by Respondent Employer's authorized representative, to be posted by it 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. Reasonable steps shall be taken by Respondent Employer to insure that said notices are not altered, defaced, or covered by any other material. (4) Notify the Regional Director for the Fourth Region, in writ- ing, within ten (10) days from the date of this Order what steps it has taken to comply herewith. 2. Respondent Union, General Teamsters, Chauffeurs, Helpers and Yardmen Local Union No. 470, affiliated with International Brother- 2 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner," the words "A Decision and Order." If this Order is enforced by a decree of a Circuit Court of Appeals, the notice shall be further amended by sub- stituting for the words "Pursuant to a Decision and Order" in the caption, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." COTTMAN BUILDERS SUPPLY CO., INC. 329 hood of - Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, its officers, agents, and representatives, shall: a. Cease and desist from : (1) Causing or attempting to cause the Respondent Employer, or assigns, to discharge or otherwise discriminate against employees because they are not members in good standing of the Respondent Union, except in accordance with the provisions of Section 8 (a) (3) of the Act. (2) In any other manner causing or attempting to cause the Re- spondent Employer, its agents, successors, or assigns, to discriminate against its employees, except in accordance with the provisions of Section 8 (a) (3) of the Act. (3) Restraining or coercing the employees of Cottman Builders Supply Co., Inc., in the exercise of their right to engage in or refrain from engaging in any or all of the concerted activities guaranteed by Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized by Section 8 (a) (3) of the Act. b. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Post in conspicuous places at the business offices and in the meeting halls of the Respondent Union, and in all other places where notices,or communications to members are customarily posted, copies of the notice attached to the Intermediate Report marked as "Appen- dix B." 3 Copies of the said notice, to be furnished by the Regional Director for the Fourth Region, after being signed by the duly author- ized representative of the Respondent Union shall be posted by the said Respondent Union immediately upon receipt thereof, and main- tained for a period of sixty (60) consecutive days thereafter. Rea- sonable steps shall be taken by the Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (2) Furnish the Regional Director of the Fourth Region signed copies of the notice, attached to the Intermediate Report marked "Appendix B,"' to be delivered by him to the Respondent Employer, upon request, for posting on the bulletin boards of the Respondent Employer in its Philadelphia, Pennsylvania, plant or in any other place or places where notices to employees are customarily posted, and maintained by the. Respondent Employer for a period - of sixty (60) consecutive days thereafter. 8 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner," the words "A Decision and Order" If this Order is enforced by a decree of a Circuit Court of Appeals , the notice shall be further amended by sub- stituting for the words "Pursuant to a Decision and Order" In the caption , the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." This notice shall be amended as indicated in footnote 3, above. 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (3) Make whole Joseph Keresty, Jr., for the loss of pay suffered by him, in the manner set forth in the section V of the Intermediate Report entitled "The Remedy." (4) Notify the Regional Director for the Fourth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. Intermediate Report STATEMENT OF THE CASE Upon a charge duly filed April 13, 1951, by Joseph Keresty, Jr., an individual, against Cottman Builders Supply Co ., Inc., Philadelphia, Pennsylvania, herein called Respondent Employer , docketed by the Fourth Regional Office of the National Labor Relations Board as 4-CA-549, and a charge filed the same date against General Teamsters , Chauffeurs, Helpers and Yardmen Local Union No. 470, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America , AFL, herein called Respondent Union, dock- eted by said Regional Office as 4-CB-103, which cases were consolidated by the Regional Director for the Fourth Region of the National Labor Relations Board, herein called the Board, and who then issued a consolidated complaint, dated December 28, 1951, against said Respondent Employer and the Respondent Union alleging that the Respondent Employer had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and ( 7) of the National Labor Relations Act, as amended , 61 Stat. 136, herein called the Act, and further alleging that the Respondent Union had engaged In and was engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (b ) (2) and Section 2 (6) and (7) of the Act. Copies of the complaint, the charges, the order consolidating the cases, and a notice of hearing were duly served upon the Respondent Employer and Respond- ent Union. With respect to the unfair labor practices the complaint alleged in substance that the Respondent Employer on or about April 4, 1951, discharged Joseph Keresty, Jr., and has since failed and refused to reinstate him, for the reason that he was not, did not become, and was not accepted as, a member in good standing in the Respondent Union ; and further alleged that the Respondent Union caused the Respondent Employer to discharge said Keresty for the reason that he was not a member in good standing of the Respondent Union ; that said conduct on the part of the Respondent Employer was violative of rights guaran- teed in Section 7 of the Act, more particularly Section 8 (a) (3) thereof; and that said conduct on the part of the Respondent Union was violative of Section 8 (b) (1) (A ) and 8 (b) (2) of the Act and that Respondents , Union and Em- ployer, coerced and restrained employees in the exercise of rights guaranteed in Section 7 of the Act. Pursuant to notice a hearing was held before Louis Plost , the undersigned Trial Examiner, at Philadelphia, Pennsylvania, on January 28, 1952. All the parties were represented by counsel , who are herein referred to in the names of their principals. All parties participated and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing upon the issues, to argue orally, and to file briefs , proposed findings of fact, and conclusions of law, either or all, with the undersigned. The parties argued orally. A date was set for the filing of briefs , conclusions, and findings. COTTMAN BUILDERS SUPPLY CO., INC. 331 On February 8, the Respondent Union moved to reopen the hearing to take newly discovered evidence. The motion was granted by the undersigned. The hearing was reopened at Philadelphia on March 6, 1952, and evidence was taken. The time for filing briefs, etc., was extended to March 20, 1952. A brief has been received from the Respondent Union. Upon the entire record and from his observation of the witnesses, the under- signed makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The parties stipulated : Cottman Builders Supply Co., Inc., is a Pennsylvania Corporation and is now and has been at all times material to this case continuously engaged in the business of selling at wholesale and retail, lumber, building materials and building supplies at its plant in Philadelphia, Pennsylvania. Annually, Cottman Builders Supply Co., Inc., has shipped to its Philadel- phia plant materials and equipment totaling approximately $4,200,000, of which approximately 90 percent is shipped to it directly from points outside the Commonwealth of Pennnsylvania. II. THE ORGANIZATION INVOLVED The parties stipulated : Local 470 of the General Teamsters , Chauffers, Helpers and Yardmen, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, the Respondent Union herein, is a labor organization within the meaning of the National Labor Relations Act as amended. III. THE UNFAIR LABOR PRACTICES Joseph Keresty, Jr., testified that he joined the Union sometime in 1939 and continued in good standing until sometime in December 1945, when he ceased paying dues. Keresty did not take a "withdrawal card" which, under the Union's rules, would have operated to suspended his liability for dues payments until such time as he again "put in" his card. By not taking a "withdrawal card" Keresty was carried as a delinquent and became liable for each month's dues thereafter. On April 14, 1949, Keresty was hired by the Respondent Employer. At that time the Respondent's plant was unorganized and remained so until October 4, 1949, when the Union admitted the employees to membership. Keresty testified that on the night of October 14, 1949, at an organizational meeting, "I joined the Union and paid the sum of $15 for initiation fees and $4 for the first current month's dues" ; that he received a receipt for the payment ; that a short time after the meeting employee Dominic Zingrella' who was chosen steward for the Respondent's drivers and was charged with collecting dues, came to Keresty in the shipping room, where, in the presence of Sharkey, the Respondent's dispatcher (admitted to be a supervisor), the following conversation took place: He asked me if I had my dues for the second month and I told him that I had never received the Dues Book whereas the others had, since joining, I The name appears variously as Singrella and Zingrella in the record. 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and That I intended to hold off paying any further dues until I received a Dues Book, and I asked him how come that my book hadn't been sent up along with the rest. He told me that he had been informed that I was in arrears with the Union for some more dues money , dating back to when I had last paid dues to the Union. Q. Did you say anything else? A. No. Well, I said to him , "That's four years." I said, "That amounts to a lot of money." He said, "I don't know about that ; you will have to take that up with Mr. Jericho. that "each and every month thereafter " Zingrella would ask for his dues, A. And I would usually tell him the same thing, that I don 't have a Dues Book and when I get a Dues Book then I will start to pay my regular dues since I have been a member of the Union with Cottman. Keresty's testimony with respect to his dues payments is summed up by the following excerpt: TRIAL EXAMINER PLOST : Am I to understand from your testimony, then, that the second month after you joined the Union, that is, which would be the second dues-paying period, and each such period thereafter, you were asked by the steward to pay your dues? THE WITNESS : That is right. TRIAL EXAMINER PLOST : And I believe you say you told him you had received no dues book and were therefore holding off until you got your dues book-or substantially that? Is that right? THE WITNESS : That is right, sir. TRIAL EXAMINER PLOST : And that the first Monday of each month there- after he would ask you for the dues and you would give substantially the same answer? THE WITNESS : That is right. TRIAL EXAMINER PLOST : And you never did pay any dues to him during these periods that we just talked about? You did not give him any dues money at those times? THE WITNESS : No, I didn't. The pattern outlined above was varied on only two occasions, the first in April 1950, the second after Keresty's discharge. With respect to the first variation in Keresty's refusal to pay the Union any dues until his self-imposed condition that he be given a dues book, which in his mind apparently represented a receipt in full for the amount of money the Union claimed he owed it as arrears, Keresty testified that on the first Monday in April 1950, Zingrella, again in Sharkey's presence, requested that he pay his dues and that : I told him I had not as yet received a dues book. He said "If you bring your dues up to date, you will get your dues book." So I said, "Well, all right, I will give you the money to take down." He said , "I am not attending this meeting." I think he said he had to go to a funeral or something else that night, so he told me to give the dues to the Steward, Leon Fisher, the Labor Steward. I gave Leon Fisher $24 for 6 months' dues bringing me paid-up, including the month of April. On the following day Fisher told Keresty that he had not been able to get a "dues book" because the office was closed but gave him a receipt for the $24 ^ti;! . COTTIMAN; BUlhL FRS SUPPLY CO,, INC. 333 payment. A few days later Zingrella told Keresty that he could not get a dues book from the Union because "you still owe them some money from old." Keresty further testified that within a few days after he sent in the $24 pay- ment he spoke to Business Representative Jericho, also in Sharkey's presence. Keresty testified : I said to Mr. Jericho, "How come that I still have not received the dues book?" He said, "Have you been down to . . . ." I think the clerk at that time in the office of the Union's name was Gormley or Gorham. And he said "Have you been down to see him?" He said, "Have you paid up the money that you owe from before you came to work for the Cottman Build- ers?" I said, "I am not going down and pay him any money that I am supposed to owe for that. I joined with the rest when Cottman first became a union organization and as long as I am paid up while I am working for them, that is all I intend to pay." He told me, "Then you won't work. You won't get a book. And if you don't have a book, you won't «ork." The other variation in Keresty's dues-paying pattern will be discussed at a later point in this Report. However, Keresty testified that after the payment in April 1950, as above mentioned, he made no payment or tender of payment until after his discharge which occurred April 3, 1951. Keresty further testified that in June 1950, he complained to Alex Nicola, the Respondent Employer's yard foreman, with respect to the amount of overtime work he received ; that he was then told by Nicola, "Well, if you had a union book you could work plenty of overtime" ; that during the first week in July when again asked for dues by Zingrella, to his usual statement regarding the dues book he added as a ground for refusal "because I was not now receiving my correct working hours" ; that he told Zingrella he wanted "to discuss it with Mr. Zuckerman," the Respondent Employer's secretary ; that the two men there- upon went to Zuckerman 's office where, according to Keresty's direct testimony, Zuckerman after listening to the complaint said to him : "Well, in the first place, you don't even have a Union Book." He said, "And until you get a Union Book I don't intend to do anything about it." And he said, "As far as you are concerned , you can do whatever you want to about It." On cross-examination, however, Keresty admitted that either during or im- mediately following his interview with Zuckerman he quit his job because during the interview Zuckerman had insulted him. He testified : Q. (By Mn. IDAvis) Do you remember having quit your job at that time and you were out of work for several days? A. Yes. I do. Keresty further testified that "I walked out of the office and after I left I in turn went up to see Mr. Orleans to explain the situation to Mr . Orleans." Orleans is the Respondent Employer's president. Keresty saw Orleans, who told him that he would speak to Zuckerman and advised him to come back the following Monday, the day being Thursday. Keresty testified that on Friday he came in and was asked by Sharkey whether he was coming back to work and that he told Sharkey, "Yes I think so. I was up to see Mr. Orleans and he told me to come back Monday. He told me to wait until Monday and that will give him a chance to talk to Mr. Zuckerman over the week end." 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Keresty returned to work on the following Monday. Keresty next attempted to change his testimony again with respect to his quitting his job in the following manner. He was asked by the attorney for the Respondent Union : There is no doubt but what you quit your job at that time, is there? Keresty's answer was : Well, it wasn't what you would exactly call a quit. . . . In answer to the following question by the Trial Examiner, "You did tell Mr. Sharkey to turn in your card, didn't you?" Keresty answered, "Yes, I did." Harry Jericho, business agent for the Union, testified : I went into the yard one morning and was talking to Joe and I asked him how he was doing. He told me that he had quit his job. I said, "What do you mean, you quit?" He said, "Yes, I quit." And he said, and then I went up to see Marvin, that is, Mr. Orleans, and then he put me back to work again." I says, "Joe, you're crazy ; you should have never quit your job." He says, "Why?" I says, "Because you know what you have done, don't you?" He looked at me. I said, "As far as we are concerned you have quit your job, and when you quit your job and then they rehire you back they rehire you back as a new man and you lose your seniority." I says, "Now on your Saturday work and your seniority, you don't have seniority no more ; you're in the middle." Q. What did he say to that? A. He says, "I never thought of that." He says, "I guess that was a foolish move"-something like that. Keresty denied Jericho's above-related testimony. On the entire record, considered as a whole, including his observation of the witnesses, the undersigned credits Jericho.' The undersigned finds that Keresty quit his employment with the Respondent during the first week in July 1950, on a day not otherwise specified, and was rehired on the Monday of the week following his quitting as above found. Keresty further testified that sometime in January 1951, he again told Zing- rella, "I wasn't going to pay any dues," whereupon Zingrella told him, "If you don't, I'm going to knock you off." On the following day when Keresty arrived for work he was told by Foreman Nicola that he was discharged by order of Zingrella. Sharkey told him that the discharge was "official." Later in the day Keresty spoke to President Orleans, the upshot being that he was returned to work the next day. Keresty testified further that following this incident he neither paid or tend- ered dues again until after his discharge which occurred April 3, 1951, under the following circumstances. Keresty had again told Zingrella he would not pay dues unless he received a dues book, and upon arriving for work the following day he was told by Nicola and Sharkey that he was discharged on Zingrella's orders. Keresty left the plant but returned later in the day and asked Sharkey if he thought that the matter could be "straightened out" and he be returned to his job. Sharkey told him that he would confer with Jericho. The next day at about 6 p. in. Sharkey called at Keresty's home and according to Keresty's testimony Sharkey "suggested that I go down to the Union and see if I could 2 The impression made by Keresty upon the undersigned as to his credibility, and the reasons therefor are set forth elsewhere herein. COMLAN BUILDERS SUPPLY CO., INC. 335 make arrangements to get straightened out." Sharkey then loaned Keresty $20 to use in paying the Union. On the following day, Keresty visited the Union's office and had the following conversation with a clerk in the office : I laid the money down on the ledge of the window and said to him "I want to join the Union, and here's the initiation fee which is $15 and a month's dues, and the $20 will cover that." He asked me if I had even been a member of the Union before. I said yes, I had. He said, "What Union?" I said, "This one, here." He said, "We don't accept anybody back into the Union once there is, or once they are classed as out of the Union." So I said, "Now look, don't tell me that, Mr. Jericho knows all about it." So he said, "Just a minute." He went over to the telephone and talked to someone on the telephone and came back and said, "Mr. Jericho doesn't know anything about it." He pushed my $20 back to me. On the direct examination Keresty testified that he again proposed joining the Union "all over again from the bottom" by paying a new initiation fee and 1 month's dues because Sharkey had told him, "I think if you go down there they will let you join all over again." On cross-examination Keresty testified : Q. Now, when you took the $20 from Mr. Sharkey why did you take it down to the Union office and seek to get in as a new member? A. Well, Mr. Sharkey suggested that to me. Whether he had been going to get in touch with Mr. Jericho about such an agreement or whether he did or not, I don't know. Again Keresty's testimony was summarized as follows : Q. (By Mr. Davis) In other words, your idea was to go down in April '51 and rejoin the Union and pay no further back dues, is that right?" A. I was willing to pay up my back dues and they wouldn't accept them. TRIAL EXAMINER PLOST : Now, what did you mean by the testimony "I was willing to pay the back dues and they wouldn't accept them?" THE WITNESS : I didn't mean that, but they wouldn't give me a book unless I paid prior to April 4th. Business Representative Jericho testified that he did not tell Sharkey that Keresty could pay a new initiation fee and a month's dues and be reinstated. Sharkey was not called. On the entire record as a whole, the undersigned finds that Keresty was not told after his discharge by Sharkey that the Union had informed him that Keresty would be given membership on payment of a new initiation fee and a month's dues e Keresty testified that after the Union's refusal to accept a new initiation fee and dues payment from him as above found, he then returned to the plant where he met Zuckerman who asked him, "Did you get fixed up down there yet?" 3 It will be noted that the undersigned has failed to credit Keresty at those points where his testimony is disputed . Keresty did not make a favorable impression on the under- signed during the hearing of January 28. At the reopened hearing the Respondent Union, for the sole purpose of attacking Keresty's credibility, introduced records of proceedings before the Pennsylvania Department of Labor and Industry, wherein Keresty under oath gave a different version of his discharge and the reasons therefor clearly seeking, at that time, to create the impression that he had been a dues-paying member in good standing who had been discharged because he refused to pay dues after his seniority rights had been ignored, also testifying under oath that he paid the Union $126 in back dues, he also stated in a separate document that the Union "refused to accept" the dues to reinstate him. This evidence serves to confirm the undersigned' s first impression. 336 DECISIONS OF NATIONAL LABOR i#ELATION9, BOARD and upon receiving a negative reply then said, "I can't wait any longer and I will have to put someone else on the carrier." Conclusion Upon the entire record in the case, the evidence considered as a whole, and his impression of the witnesses, the undersigned finds : (a) That Joseph Keresty, Jr., joined the Respondent Union prior to his employment by the Respondent Em- ployer; (b) that the Respondent Union carried him as delinquent in dues pay- ment ; (c) that he tendered an initiation fee and 1 month's dues to the Respondent Union on October 14, 1949, at which time the Respondent Union organized the Respondent Employer's plant; (d) that thereafter the Union informed him that as a member delinquent in dues he could not rejoin in this manner and that he must pay all delinquent dues incurred prior to his employment by the Respondent Employer and the organization of its plant; (e) that thereafter Keresty refused to pay the "back" dues claimed or his "current" dues unless he was given a "dues book" by the Respondent Union which apparently Keresty interpreted as a clear receipt for all past claims against him by the Respondent Union, except that in April 1950 he paid $24 to the Union, representing 6 months' "current" dues on a steward's promise that he would obtain a dues book for him; (f) that he did not receive such dues book; (g) that in July 1950 Keresty quit his job with the Respondent Employer and was rehired the following week ; (h) that on April 3, 1951, he was discharged by the Respondent Employer at the request of the Respondent Union. The Contract between the Respondent Union and the Respondent Employer As herein found the Union organized the employees on October 14, 1949. Thereafter the Union and the Employer entered into a collective-bargaining contract' The contract contained the following clause : III. Except as herein otherwise provided, all classes of employees em- ployed by the EMPLOYER within the scope of this agreement shall become members of Local Union within the period prescribed by the Labor-Manage- ment Relations Act of 1947 and the regulations thereunder, and all such em- ployees shall thereafter remain members of Local Union, in good standing, as a condition of employment during the term of this agreement, unless by repeal or amendments of the law a Union security election is not necessary, in which event the Union shop shall become effective immediately. The parties stipulated that an election was conducted by the Board's Fourth Regional office on March 9, 1951, among the employees of the Respondent Em- ployer to determine if they desired that a union-shop agreement be made in their behalf. The employees voted authority to make such an agreement and on March 19, 1951, a certificate of the result of the election was issued by the Regional Director. Rights of the Union, the Employees, and the Employer under the Contract It is well settled that a clause in a contract intended to hold in abeyance the creation of a union shop until the proper legal requirements have been met is perfectly valid. At the time material herein, a union shop could not be created 4 The date of the contract is not clear in the record The copy introduced is undated. However, it is undisputed that the contract was in effect at all times material herein. COTTMAN BUILDERS SUPPLY CO., INC. 337 until "the Board . . . certified that at least a majority ... eligible to vote . . . authorized . . . such an agreement."' After the "union shop election" and the certification of results, on March 19, 1951, as stipulated and found herein, the Union and the Employer were privileged to enter into a union-shop agreement, but in no event could such an agreement be entered into, or in the instant case could the union-shop clause of the contract become operative, until another condition set forth in the statute was met, namely : membership could not be required as a condition of employment until "after the thirtieth day ... following ... the effective date of such agreement." Therefore, under the contract between the Union and the Employer herein, the Union could not enforce membership as a condition of employment of any employee of the Respondent Employer until 30 days after the membership clause became effective, which in the most liberal interpretation possible would be April 19.' The Act lays down a barrier to the discharge of an employee under a union- shop agreement after all conditions as to the execution of such a contract and the running of the "escape period" have been met, that is : the employer cannot make such discharge if he has reasonable grounds for believing that member- ship in the contracting union was not available to the employee on the same terms and conditions generally applicable to other union members or applicants, or if he has reasonable grounds for believing that membership was denied for any reason other than that failure to tender periodic dues and initiation fees. The Act further makes it an unfair labor practice on the part of a union to coerce employees in the exercise of rights guaranteed in Section 7, or to cause an employer to discriminate against (here discharge) an employee who has been denied membership for any cause save failure to tender periodic dues or initiation fees. It is therefore clear that from the effective date of the contract between the Respondents, Union and Employer, and the effective date of the union-shop pro- vision therein, no employee of the Respondent Employer could be required to obtain or hold membership in the Respondent Union as a condition of employment. This means that the Union could not enforce membership of the Respondent's employees by discharge for failure to join ; however, during this period although the employees could not be required to join the Union, the Union was not required either to tender them memberships or to accept their applications if all the rules set up by the Union were not met by the applicant, as Section 8 (b) (1) (A) of the Act disclaims any intention in the law to "impair the right of a labor organization to prescribe its own rules with respect to acquisition or retention of membership therein." Thus under its own rules, during a time when membership as a condition of employment was not required of the employees of the Respondent Employer, the Union could conceivably deny them membership but it could not deprive them of their employment by causing their discharge, nor could it lawfully seek discharges of such employees by the Respondent Employer for failure to join, obey rules, or pay dues into the Union. The Respondent Union argued at the hearing and contends in its brief that the "escape clause" was not applicable to Keresty because he was in fact it ' Section 8 (a) (3) (ii) repealed October 22, 1951. 6Section 8 (a) (3). ' This general finding is of course subject to and modified by Charles A Krause Milling Co., 97 NLRB 536 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD member of the Union, with delinquent status. Assuming arguendo that the Union's contention is valid , still the Union could not either compel good-standing membership or cause discharge until the "union shop" clause became effective, but the Union argues in its brief that as the "union shop" became effective on March 19, 1951, it could legally ask the Respondent Employer to discharge Keresty immediately thereafter because he did not pay his "current dues" and that the Employer was obligated to discharge Keresty on the Union' s demand, because Keresty being already a member was not entitled to the benefit of the 30-day "escape period." The Union supported this argument by the ruling in the Krause Milling Co. case ° wherein the Board held that: The thirty-day grace period for requiring union membership under the provisions of the amended NLRBA which permits union shop agreements extends only to those employees who are not already members on the effective date of the agreement or to new employees hired after that date. The argument has no merit as far as the instant matter is concerned for the reason that the Respondents, Union and Employer, disregarded another provision of the Act which prohibits the discharge of an employee covered by a "union shop" contract for any other reason than his failure to tender the periodic dues uniformly demanded and further prohibits such discharge if the Employer has reasonable grounds for believing that membership was not available to the employee on the same terms generally applicable to members! The reason for Keresty's discharge and his status with the Union is made clear in the testimony of Business Representative Jericho who testified credibly that shortly after Keresty paid the initiation fee and dues in October 1949 he told Keresty that the payment was not acceptable because Keresty "already had a ledger page in our books and he would have to pay his back dues," and also that the money he had paid would be credited to his delinquent account. Jericho further testified that he "requested that he [Keresty] be laid off until he came in and straightened out his dues and got his book." Jericho also testified : Q. (By Mr. Kowal) And it is true, Mr. Jericho, is it not, that no matter what Mr. Keresty did that is when he offered to pay dues from 1949 to 1951 he could not become a member in good standing unless he paid the dues from 1945 to 1949, is that right? A. That is right. It is quite clear that the Respondent Union and Keresty, be he a recalcitrant member or merely a would-be draft dodger from the Union's ranks, had locked horns on a vital issue. The Union had informed Keresty that he would not be given good-standing membership until he first paid to the Union the dues obli- gation incurred before his present employer entered into a contract with it. The Union so informed Keresty in October 1949 and has remained firm in this position. On the other hand Keresty refused at all times to pay the former obligation, and in effect refused to permit the Union to apply payments of current dues to his outstanding obligation by the simple method of refusing to pay unless he received a "dues book" which he evidently believed would cancel the debt claimed by the Union, and thereby fell into a strong position. Both parties understood that Keresty would not be given good-standing membership until the Union's claim was first satisfied. Both remained adamant. s See Chas. A. Krause Milling Co., 29 LRRM 1120. ° Section 8 (a) (3) (A) and (B). COTTMAN BUILDERS SUPPLY CO., INC. 339 In this tug-of-war, after the Union's position as to his membership was made clear to him, Keresty was under no obligation to actually tender "current dues," for if such a tender would not attain him the membership in good standing re- quired by the contract between the Respondents, Union and Employer, the tender was futile and unnecessary as a condition of retaining his employment to The Respondent Union's position is untenable, for by seeking to compel the payment of an obligation which antedated the "union-security" agreement which bound Keresty, and by applying payments intended him as his current dues, not to the account specified but to the old arrears account, thereby not putting him in good standing, the Respondent Union has violated Section 8 (b) (1) (A) and (b) (2) of the Acts' The record is clear that the Respondent Employer was fully aware that the Union was seeking Keresty's discharge because he refused to pay an obligation incurred prior to the time it entered into a contract with the Union and the Employer was also aware that the Union denied Keresty membership in good standing until its claimed obligation was met, nevertheless on the demand of the Respondent Union the Respondent Employer discharged him. In so doing, the Respondent Employer clearly violated Section 8 (a) (1) and (3) of the Act. Liability Inasmuch as the Respondent Union sought to force Keresty to accept a condi- tion beyond that permitted by its status as the contracting bargaining repre- sentative, it engaged in restraint and coercion of employees within the meaning of Section 8 (b) (1) (A) of the Act, and by causing the illegal discharge to be made by the Respondent Employer it violated Section 8 (b) (2) of the Act, while, as found herein, by discharging Keresty the Employer violated Section 8 (a) (3) of the Act. By the above-found conduct, both the Respondents, Union and Employer, have interfered with, restrained, and coerced the employees of the Respondent Employer in the exercise of rights guaranteed in Section 7 of the Act 19 The undersigned so finds. The Respondent Employer opened its oral argument before the undersigned with the following statement : The Company seems to be in the middle here . . . it seems we may have to sink or swim with the outcome of the fight between the Board and the Union. '° Eclipse Lumber Co., 95 NLRB 464. 11 See N. L. R. B. v. International Union, United Automobile, Aircraft and Agricultural Workers of America, 6110, Local 291, Lawrence Murphy, Louis Mueller, Wilbur Kock and Walter Cappei, 194 F. 2d 698 (C. A. 7). v The controlling section of the Act herein reads as follows : (b) It shall be an unfair labor practice for a labor organization or its agents- (1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein; or (B) an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances ; (2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3) or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership ; . .. . 242305-53 -23 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The undersigned does not believe that the Respondent Employer can be ac- curately pictured as the ram caught in the bushes by its horns and thus destined to become the innocent sacrifice on an altar prepared for a different victim. The Respondent is charged with the knowledge that it had no legal right to discharge Keresty at the Union's request and regardless of the fear it had, also expressed in oral argument as "we know if there is difficulty we face the possibility of a strike and the place is shut down " The Respondent Employer is required to be "as brave as a lion" in upholding the law. It must, however, be pointed out that the Respondent Employer was a re- luctant accessory to the unfair labor practice Keresty admitted that after his discharge, Sharkey told him "that he would keep it [Keresty's job] open for a week or a week and a half" waiting Keresty's return to work. As herein found the charge in this matter was filed April 13, 1951. The Employer, acting through its attorneys, sent the following letter to Keresty: MAY 24, 1951. Mr. JosEPa KEBESTY, 5029 Valley Street, Philadelphia, Pa. DEAR Sin: Please be advised that we represent Cottman Builders Supply Co., Inc., and we wish to advise that on Thursday, May 17, 1951 we advised Mr. Eugene Levine of the National Labor Relations Board that Cottman has held your job open for you since the time you left and has continued to do so. We would appreciate your advising us as to whether or not you intend to resume your job at Cottman. Yours very truly, (S) IRA I. PECHTER (For Pincus and Pechter). IIP/rg. Apparently following Keresty's discharge the Respondent Employer, after a conference regarding its conduct with a representative of the Board, decided to be "brave as a lion." It is reasonable to presume that the Respondent Em- ployer, fully advised with respect to its conduct, had decided to come within the law at the time it wrote to Keresty. In the opinion of the undersigned, the Respondent Employer's letter to Keresty constituted an unconditional offer of reinstatement. Keresty admitted that he received the letter and did not reply or act on it. The undersigned is of the opinion therefore that Keresty refused a bona fide offer of reinstatement and that thereafter the Respondent Employer' s obligation with respect to Keresty's reinstatement was ended, however, the Respondent Employer remains liable for any loss of pay Keresty may have suffered by reason of the discrimination from the date of his unlawful discharge on April 3, 1951, until the Respondent Employer's offer of reinstatement on May 24, 1951. Conclusions The undersigned concludes and finds, upon the entire record considered as a whole, that the Respondent Employer discharged Joseph Keresty, Jr., on April 3, 1951, because of his failure to pay delinquent dues to the Union, the delinquency having accrued during a period when, under the Act, he could not have been required to make such payment as a condition of his employment under the COTTMAN BUILDERS SUPPLY CO., INC. 341 existing contract between the Respondents, Union and Employer," thereby the Respondent Employer has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act, and thereby has encouraged membership in the Union and discriminated with respect to the hire and tenure of the employment of said Keresty in violation of Section S (a) (3) of the Act. The undersigned finds on all the evidence, and the record considered as a whole, that by its conduct toward Joseph Keresty, as herein found, the Re- spondent Union has restrained and coerced employees of the Respondent Em- ployer in the exercise of rights guaranteed in Section 7 of the Act and has more particularly violated Section 8 (b) (1) (A) thereof. The undersigned further finds that by causing the Respondent Employer to violate Section 8 (a) (3) of the Act, as herein found, the Respondent Union has violated Section 8 (b) (2) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents, set forth in section III, above, occurring in connection with the operations of Respondent Company, set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondents, Union and Employer, and each of them, have engaged in and are engaging in certain unfair labor practices, it will be recom- mended that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent Employer unlawfully discharged Joseph Keresty, Jr, and having further found that the Respondent Employer offered Keresty reinstatement to his former position, and having found that said Keresty refused to accept the Respondent Employer's offer of reinstatement, the undersigned finds that no further offer of reinstatement need be made to Keresty. The undersigned will recommend that the Respondent Employer make Keresty whole for any loss of pay he may have suffered from the date of his unlawful discharge to the date of the Respondent Employer's offer of reinstate- ment which the undersigned finds to have been May 24, 1951" Such losses of pay shall be computed in accordance with the Woolworth formula's Inasmuch as it has been found that both Respondents, Union and Employer, are responsible for the discrimination suffered by Keresty, it will be recom- mended that they jointly and severally make him whole for any loss of pay he may have suffered by reason of the discrimination against him 16 It has been found that Respondent Union has engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) and 8 (b) (2) of the Act. It will, therefore, be recommended that Respondent Union cease and desist there- from and take certain affirmative action in order to effectuate the purposes of the Act. Moreover, the undersigned believes that a broad order is required 'a See footnote 11, supra. " Crossett Lumber Co., 8 NLRB 440. 'IF W. Woolworth Company, 90 NLRB 289. 16 The undersigned has found that the Union wrongfully misapplied money paid by Keresty. Inasmuch as the recovery thereof is a purely private right the undersigned makes no recommendation with respect thereto. 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to prevent the recurrence of similar unlawful conduct by the Union in the future. In order, therefore, to make effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices , and thereby minimize in- dustrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, the undersigned recommends that the Respondent Union cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following: CONCUSIONS OF LAW 1. Cottman Builders Supply Co., Inc., Philadelphia, Pennsylvania , is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. General Teamsters, Chauffeurs, Helpers and Yardmen Local Union No. 470, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act, and admits employees of the Respondent Employer to membership. 3. By discriminating with respect to the hire and tenure of employment of Joseph Keresty, Jr., thereby encouraging membership in the Respondent Union, the Respondent Employer has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act, and also of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. By causing the Respondent Employer to discriminate against an employee in violation of Section 8 (a) (3) of the Act, the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 6. By restraining and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) 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 omitted from publication in this volume.] Appendix A NOTICE To ALL EMPLoYEF.s 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, as amended, we hereby notify our employees that: WE WILL Nor encourage membership in GENERAL TEAMSTERS, CHAUFFEURS, HELPERS AND YARDMEN LOCAL UNION No. 470, affiliated with INTERNATIONAL BROTHERHOOD or TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, or in any other labor organization of our employees by dis- charging any of our employees or discriminating in regard to their hire or tenure of employment, or any terms or conditions of employment. WE WILL make Joseph Keresty, Jr., whole for any loss of pay suffered by him as a result of our discrimination against him. DAYSTROM FURNITURE DIVISION 343 All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named union or any other labor organization, except to the extent that this right maybe affected by an agreement in conformity with Section 8 (a) (3) of the Act. CarrMAN BUILDERS SUPPLY CO., INC., Employer. Dated -------------------- By ----------------------------------------- (Representative) <Title)- This notice must remain posted for 60 days from the date hereof , and must not be altered , defaced , or covered by any other material. Appendix B NOTICE TO ALL MEMBERS OF GENERAL TEAMSTERS, CHAUFFEURS, HELPERS AND YARDMEN LOCAL UNION No. 470, AFFILIATED WITH INTERNATIONAL BROTHERHOOD or TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL 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 Re- lations Act, as amended, we here notify you that : WE WILL NOT restrain or corece employees of COTTMAN BUILDERS SUPPLY Co., INC., their successors or assigns , in the exercise of their right to engage in or to refrain from any or all of the concerted activities guaranteed to them by Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment, as authorized by Section 8 (3) of the Act. Wx wmr Nor in any manner cause or attempt to cause the above-named employers, their officers, agents, successors, or assigns, to discriminate against their employees in volation of Section 8 (a) (3) of the Act. WE WILL make Joseph Keresty, Jr., whole for any loss of pay suffered because of the discrimination against him. GENERAL TEAMSTERS , CHAUFFEURS, HELPERS AND YARDMEN LOCAL UNION No. 470, AFFILIATED WITH INTERNATIONAL BROTHERHOOD or TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN, AND HELPERS O8' Av arCA, AFL, LABOR OROANIRATION. Dated-------------------- By ----- -------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. DAYSTROM FURNITURE DIVISIoN, DAYSTROM, INC. and DAYSTROM IN- DUSTRIAL INDEPENDENT UNION, INC., PETITIONER. Case No. 3-RC- 1062. November 18,1952 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Thomas H. Ramsey, hearing 101 NLRB No. 92.