Busch Kredit Jewelry Co. Inc.

National Labor Relations Board - Board Decisions

Jun 4, 1954

108 N.L.R.B. 1214 (N.L.R.B. 1954)

I Z14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. If a majority of the employees in a voting group select
the Union seeking to represent them separately , these em-
ployees will be taken tohave indicatedtheir desire to constitute
a separate bargaining unit and the Regional Director is in-
structed to issue a certification of representatives to the labor
organization selected by the employees for that unit , which the
Board in such circumstances finds to be appropriate for pur-
poses of collective bargaining. In the event a majority in either
or both groups vote for the Intervenor , the Board finds the
existing unit including such group or groups to be appropriate
and the Regional Director will issue a certification of results
of election to such effect.
[Text of Direction of Elections omitted from publication.]
BUSCH KREDIT JEWELRY CO., INC. and WILLIAM KUL-
MATYZKI
BUSCH KREDIT JEWELRY CO., INC. and EDWARD Mc-
DONALD
DEPARTMENT AND SPECIALTY STORE EMPLOYEES UNION,
LOCAL 1499, RETAIL CLERKS INTERNATIONAL ASSOCIA-
TION, AFL and EDWARD McDONALD. Cases Nos. 2-CA-
2632, 2-CA-2652, and 2-CB-831. June 4, 1954
DECISION AND ORDER
On December 3, 1953, Trial Examiner Lloyd Buchanan
issued his Intermediate Report in the above - entitled proceed-
ing, finding that the Respondents had engaged in and were
engaging in certain unfair labor practices and recommending
that they cease and desist therefrom and take certain affirma-
tive action , as set forth in the copy of the Intermediate Report
attached hereto . The Trial Examiner also found that the
Respondents had not violated the Act in connection with the
discharge of Edward McDonald and recommended the dis-
missal of that allegation of the complaint . Thereafter, both
Respondents filed exceptions to the Intermediate Report and
supporting briefs . The Company also requested oral argu-
ment. This request is denied , as the record , the exceptions,
and the briefs , in our opinion adequately present the issues and
the positions of the parties.
The Board has reviewed the rulings of the Trial Examiner
made at the hearing 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
108 NLRB No. 170.
BUSCH KREDIT JEWELRY CO. , INC. 1215
findings , conclusions , and recommendations i of the Trial
Examiner , with the following modification.
We agree with the Trial Examiner that the discharge of
William Kulmatyzki violated Section 8 (a) (1) and ( 3) and Section
8 (b) (1) (A) and (2 ) of the Act . In so finding , we do not pass
upon the legality of the union-security provisions of the
Respondents ' contract , but rest our decision solely on the
following : The Respondents announced to the employees that
they had until July 31, 1952, in which to join the Union. On
July 31, Kulmatyzki in fact applied for membership in the
Union, and otherwise complied with all formalities necessary
to become a member in good standing . Accordingly, even were
we to assume the validity of the union-security provisions of
the Respondents ' contract , and even were we to assume further
that the contract ' s terms in fact required union membership
on and after July 25, 1952, as the Respondents contend, the
Respondents, having themselves varied the contract ' s terms
and thereby having misled the employees, may not now assert
the July 25 date to validate Kulmatyzki' s discharge.'
ORDER
Upon the entire record in the case, and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that:
I. The Respondent Company, Busch Kredit Jewelry Co ., Inc.,
New York , New York, its officers, agents, successors, and
assigns , shall:
1. Cease and desist from:
(a) Encouraging membership in any labor organization by dis-
charging any of its employees or discriminating in any other
manner in respect to their hire and tenure of employment or
any term or condition of employment except as authorized in
Section 8 ( a) (3) of the Act.
(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the right to self-
organization , to form labor organizations , to join or assist
labor organizations, to bargain collectively through representa-
tives of their own choosing , and to engage in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all of such
activities , 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 in Section 8
(a) (3) of the Act.
'Because no exceptions have been filed thereto, we adopt the Trial Examiner's recommen-
dation of an order enjoining the Respondents only from violations like or related to those found.
2 For this reason cases such as Chisholm-Ryder Company , Inc., 94 NLRB 508, and Standard
Brands, Incorporated , 97 NLRB 737, relied on by the Company , are not in point.
1216 DECISIONS OF N4 TIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action, which the Board
finds will effectuate the policies of the Act:
(a) Offer to William Kulmatyzki immediate and full rein-
statement to his former or substantially equivalent position,
without prejudice to his seniority or other rights and privileges,
in the manner set forth in the section of the Intermediate Report
entitled "The Remedy."
(b) Jointly and severally with the Respondent Union, make
whole the said William Kulmatyzki for any loss of pay he may
have suffered by reason of discrimination against him, in the
manner set forth in the section of the Intermediate Report
entitled "The Remedy."
(c) Post at each of its stores in the State of New York copies
of the notices attached to the Intermediate Report and marked
"Appendix A" and "Appendix B." 3 Copies of said notices, to be
furnished by the Regional Director for the Second Region, shall,
after being duly signed by the respective representatives, be
posted by the Company immediately after receipt thereof, and
be maintained by it for sixty (60) consecutive days thereafter,
in conspicuous places, including all places where notices to its
employees are customarily posted. Reasonable steps shall be
taken by the Company to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for the Second Region, in
writing, within ten (10) days from the date of this Order, what
steps have been taken to comply herewith.
II. The Respondent Union, Department and Specialty Store
Employees Union, Local 1499, Retail Clerks International Asso-
ciation, AFL, its officers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Requiring, instructing, or inducing the Respondent Com-
pany, its officers , agents, successors , or assigns , or any other
employer to discharge employees because they are not mem-
bers in good standing in the Respondent Union, except in accord-
ance with Section 8 (a) (3) of the Act.
(b) In any like or related manner causing or attempting to
cause the Respondent Company, its officers, agents, successors,
or assigns , or any other employer to discriminate against any
employee in violation of Section 8 (a) (3) of the Act.
(c) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed in Section 7
of the Act.
2. Take the following affirmative action, which the Board
finds will effectuate the policies of the Act:
(a) Notify the Respondent Company, in writing, that it with-
draws its objections to the employment of William Kulmatyzki
3These notices, however, shall be, and they are, amended by striking therefrom the words
The Recommendations of a Trial Examiner" and substituting in lieu thereof the words "A
Decision and Order." In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order."
BUSCFI KREDIT JEWELRY CO„ INC 1217
by the Respondent Company, and requests it to offer to him
immediate and full reinstatement to his former or substantially
equivalent position, without prejudice to his seniority, and
other rights and privileges.
(b) Jointly and severally with the Respondent Company make
whole the said William Kulmatyzki for any loss of pay he may
have suffered by reason of their discrimination against him,
in the manner set forth in the section of the Intermediate Re-
port entitled "The Remedy."
(c) Post at its office in New York, New York, copies of the
notice attached to the Intermediate Report and marked "Ap-
pendix B."4 Copies of said notice, to be furnished by the
Regional Director for the Second Region, shall, after being
duly signed by the Respondent Union's representative, be
posted by the Respondent Union immediately upon receipt
thereof, and be maintained by it for sixty (60) consecutive days
thereafter, in conspicuous places, including all places where
notices to its members are customarily posted. Reasonable
steps shall be taken by the Union to insure that said notices
are not altered, defaced, or covered by any other material.
(d) Mail to the Regional Director for the Second Region
signed copies of the notice attached to the Intermediate Report
and marked "Appendix B," for posting in the Company's
stores , for sixty ( 60) consecutive days , inplaces where notices
to employees are customarily posted. Copies of said notice,
to be furnished by the Regional Director for the Second Region,
shall, after being duly signed by the Respondent Union's repre-
sentative , be forthwith returned to said Regional Director for
such posting.
(e) Notify the Regional Director for the Second Region, in
writing, within ten (10) days from the date of this Order, what
steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is , dismissed insofar as it alleges the discriminatory
discharge of and the refusal to reinstate Edward McDonald.
4See footnote 3, supra
Intermediate Report and Recommended Order
The consolidated complaint herein alleges that the Company has violated Section 8 (a) (3) and
(1) of the National Labor Relations Act, as amended, 61 Stat 136, by discharging William
Kulmatyzki and Edward McDonald on or about July 31, 1952, and thereafter failing and re-
fusing to reinstate diem, because they were not members of the Union, and that the Union has
violated Section 8 (b) (2) and (1)(A) of the Act by attempting to cause and causing the Company
to commit the acts alleged and for the reason alleged The answers deny the allegations of
unfair labor practices, and allege that the Respondent entered into a union-security agreement
and that the discharges were lawfully effected pursuant thereto.
A hearing was held hefore nie at New York, New York, on October 12, 15, and 16, 1953
Pursuant to leave granted to all parties, and the time therefor having been extended, a brief
was thereafter filed by the Union
Upon the entire record in the case and from niy observation of the witnesses, I make the
following
339676 0 - 55 - 78
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
L THE COMPANY' S BUSINESS AND THE LABOR ORGANIZATION INVOLVED
It was admitted and I find that the Company, a New York corporation with its principal office
in New York City, operates 14 retailstores, all in New York State, in and near New York City,
that it is engaged in the sale of watches, diamonds, jewelry, and related products, that in 1952
it purchased and caused to be delivered to its stores such products valued at more than
$1,000,000, approximately 50 percent ofwhichwas transported from points outside the State of
New York, that in 1952 it sold products valued at more than $1,000,000, approximately 5 per-
cent of which was transported from its stores to points outside the State of New York: and that
the Company is engaged in commerce within the meaning of the Act.
It was admitted and Ifind that theUnion is a labor organization within the meaning of the Act
IL THE UNFAIR LABOR PRACTICES
In the main, there is agreement concerning the pertinent facts But the parties are in dis-
agreement concerning the significance of those facts and concerning the law. Board cases being
cited to support each of the respective positions
A. Outline of events
Another union had represented the Company's employees but, after an election which was
followed by certification by the Board, the Company and the Union herein on June 25, 1953,
entered into a collective-bargaining agreement (There is no question concerning coverage of
the employees herein involved.) The agreement included the following provisions:
ARTICLE 3 UNION SECURITY:
A. All employees covered by this Agreement shall , as a condition of employment,
thirty (30) days after the effective date hereof, and all new employees , thirty ( 30) days
after the date of their employment , become members of the Union and remain members
of the Union in good standing for the duration of this Agreement.
B. In the event an employee , subject to the preceding paragraph is declared to be not
in good-standing , or is about to be so declared , the Union shall notify the Company in
writing , of such fact , and the parties shall have five (5) business days' time to adjust the
matter . Should the matter not be adjusted within the allotted time , then the Company
agrees to discharge such employee . For the purposes of this Article , good standing shall
mean the payment of the proper dues and initiation fees
ARTICLE 22. PERIOD OF AGREEMENT-
This agreement shall be effective as of June 1, 1952, ...
It is clear that the contract was discussed among the employees both before its execution,
when a bulletin was sent by the Union to each of them and posted on the bulletin boards advising
of submission of a final draft of the contract (with specific notice of inclusion of a union-shop
clause), and after the agreement was signed OnJuly 15 the Union issued to all employees and
posted on the boards a noticethatthey had 30 days from the date of signing of the agreement to
"bring themselves into good standing" intheUnion On July 19 the Union advised the Company
that if certain named employees, who had not signed authorization cards, "fall to bring them-
selves into good standing, they should bedismissedby August 1st, as required by the terms of
(the) agreement." The Union attempted on July 25 to arrange a meeting with the Company to
"check on a final list," and such a meeting was thereafter arranged for noon on July 31,
an earlier date being inconvenient for the Company
By the time of the meeting on July 31 all employees in the unit at the various stores except
Kulmatyzki and McDonald had joined the Union or made satisfactory arrangements At about
12:30 or 1 p m. on that day, and at the Union's request, Van Busch, the Company's president,
communicated with the store managers who were instructed td notify Kulmatyzki and McDonald
BUSCH KREDIT JEWELRY CO., INC. 1219
that they were discharged (As the latter two are specifically and separately considered infra,
subsequent events will there be noted.)
There is no issue concerning the right of the Company or the Union to discharge or demand
discharge under a valid union-security provision within the provisions of Section 8 (a) (3) of the
Act.
B. The collective -bargaining agreement
The General Counsel makes no direct attack on the contract, and does not allege that it
violates the Act. In fact, the contract is for the first time mentioned in the respective answers.
However, whether the agreement be alleged in the complaint as a violation, or it be considered
as a defense to a general allegation of discriminatory discharge, the questions of interpretation,
intent, practice, and effect are the same. Thedifferent manner in which the issue is presented
offers no basis for distinction in analysis or determination. We shall therefore consider
whether the contract supports and justifies thedischarges or whether it would itself be found to
be violative of the Act.
Noting the date of the agreement and considering article 3, it at first appears that those who
were employees on June 25 were given until July 25 to join the Union. As for paragraph B of
that article, it does not by its terms extend the period set forth in the preceding paragraph,
but applies to the procedure to be followed by "the parties," with the possibility of delay in
effecting discharges. (Subsection D. infra.)
But article 22 makes the contract retroactive, specifically declaring that the effective date is
June 1, so that the agreement on its face fails to comply with the statutory requirement. The
Respondents argue for applicability of the retroactive date only to articles 12, 13, and 14, which
refer to hours, wages, and commissions, and to article 17, welfare plan, which latter specifies
the June 1 date. The short answer to this is that the contract does not provide for any such
limited applicability of the effective date, as the earlier date was set forth in article 17, so
could the later have been declared in article 3. Nor is this a case which calls for "liberal
interpretation" as urged by the Union. Use of the same term, "effective" date, in both
article 3 and article 22 precludes different interpretations. The agreement on its face there-
fore cannot support the discharges (Whilethis determination is necessary to enable us to pro-
ceed to further consideration herein, therewillof course be no finding of violation based on the
contract since no such violation is alleged.) i
C. Intent and practice
Both in connection with the execution of the agreement and the practice followed by the
parties however, it was made clear, as the recital of events, supra indicates that employees
had 30 days from its execution, or through July 25, to join the Union This is to be seen in
the letters or notices distributed to employees and posted, including the bulletin of June 18,
which urged "all employees (to) sign . . cards so that they will be in good standing from the
inception of the contract," thus indicating that the inception was still prospective; the bulletin
of July 15, which specifically referred to the deadline as being "Thirty (30) days from the
date of signing", and also in discussions by and with store managers on behalf of the Company
and stewards for the Union Both Respondents testified that this was their intent in executing
the agreement, the practice followed verifies it.
In looking to intent where the contract is not ambiguous, we are not acting to modify it in the
face of objection of a party or beneficiary who relies on its clear terms. Here both parties are
in agreement concerning their intent in executing the contract Nor does it appear that any
employee was misled With respect to theviolationof Section 8 (b) (1) (A), in which direct effect
on the employee is in issue, examination of the basic case on this point 2 makes it clear that
the finding of liability on the Union's part is posited precisely on the restraint imposed on
employees by the invalid agreement. But where, as here, the intent was clearly and unmistak-
ably communicated to the employees and it was in fact clearly understood and relied upon, there
could be no such restraint and no such liability
Similarly in connection with the practice of the parties: that they did not in the case of any
employee attempt to limit the 30-day period to any tinie prior to July 25, as is conceded, but
iCf. cases cited in footnote 4, infra.
2 New York State Employers Association, Inc., et al., 93 NLRB 127.
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in every case cited that or a later deadline,3 is referable to their intent in executing the con-
tract and to the issue of practice and actual restraint on the employees To hold otherwise
would be to magnify form at the expense of substance, and that without reason in equity. The
Board has recognized a different situation where under the terms of a prior contract certain
conditions were imposed on the employees and "the Respondents made no effort to inform the
employees that any contrary condition of employment existed " 4 In the instant case, not only
were there no prior contrary conditions, but from the first each advice to employees, both
written and oral, included clear notice that the restriction allowed the full statutory period,
i e , July 25 or beyond
To this point, then, considering the intent and general practice followed, we find no viola-
tion of the Act It is unnecessary to attempt to distinguish each of the cases mentioned by
the General Counsel Regal Shoe Company,5 relied upon by him on the issue of reference
to intent and practice where there is no ambiguity in the agreement, notes a contrast even
as there is in the instant case with those unfair labor practice cases "directly involving
the validity of a union-security provision " That that case did not affect the rule of intent
and practice applicable here, as seen supra, is clear from this further quotation. "We are not
considering the case of an individual or group of employees who claim that an illegal pro-
vision was unlawfully used to deprive them of employment." Neither, and admittedly, is it
here claimed that an illegal provision was unlawfully used , limiting the present reference to
the 30-day provision. As in Regal, the validity of the contract is not directly in issue "as if
this were the case of an employee claiming that he had not been accorded his statutory rights
under the union-shop clause." It need not be pointed out again that any unfair labor practice
here is based not on violation of rights under the contract but on failure to follow an alleged
established practice which is materially different from and extends the contract provision
In short, while this is an unfair labor practice case, as in a representation case " an illegal
provision was (not here) unlawfully used" and this is not "the case of an employee claiming
that he had not been accorded his statutory rights under the union-shop clause."
Without giving it greater consideration than the General Counsel's cursory or incidental
reference to it warrants, I would refer also to Krambo Food Stores, Incorporated,6 in which
the Board held that it would lookto extrinsic evidence of intent where a contract is ambiguous.
It does not appear whether in that case a claim was made that the provision in question was
never enforced or intended to be enforced. Further, the Board there exculpated the parties
although they maintained and enforced the agreement, their good faith in obtaining an insuf-
ficient authorization being considered Both on principle, as noted briefly, supra, and on the
authority of Port Chester Electrical and other cases cited,I the intent in executing the agree-
ment and the practice followed thereunder are materialdespite the absence of ambiguity in the
provisions in question.
D. "Five business days"
As noted, the provision for 5 business days allowed for "adjustment" between the parties
and additional time within which the Company could act against those who had not joined. By
its terms, it was not an extension granted to the employees for joining the Union, it was
explained, and plausibly, as an extension to theCompany and an opportunity to obtain replace-
ments
3 Kulmaryzki testified that about July 15 he said that be would join and knew that he would
have to within 30 days; but he did not know when the contract had been signed although he
testified that he read and discussed it and may have seen the date on it. As did the others,
he understood that the 30-day period had not then expired, and he acted on that understanding.
He appeared to be aware at all times of the requirements of the agreement and his obligation
thereunder as well as his rights. Neither Kulmaryzkl nor McDonald denied receipt of the
Union's bulletin of July 15; the former testified that it was posted and lie read it, the latter
only that lie never looked at the bulletin board.
4Jandel Furs, 100 NLRB 1390. See also Port Chester Electrical Products Corporation,
97 NLRB 354; Monolith Portland Cement Company, 94 NLRB 1358, in which intent was consi-
dered although the contract provisions were not ambiguous
5106 NLRB 1078.
6106 NLRB 870.
7Footnote 4, supra.
BUSCH KREDIT JEWELRY CO., INC. 1221
Here again, as in connection with the date set forth for joining, we must look to the intent
of the parties and more important because of the intervening interest, to the practice which
they announced and followed as indicating both such intent and the conditions relied upon by the
employees. Aside from personal discussions testified to, various documents indicate an ex-
tension to July 31, and notice thereof to the employees (Five business days from July 25
terminated on July 31 )
The Union's letter of July 28 mentions those employees who had "not as yet brought them-
selves into good standing as members of this Union " (Emphasis supplied ) Then, after indi-
cating that all employees covered were to join by July 25, it adds that "any employee who has
not become a member in good standing prior to August 1st, should be dismissed " The letter
declares further that the Union has "informed all of the employees covered by the Agreement
that the Company would be required to dismiss employees not in good standing by August 1st "
Any ambiguity here is of course chargeable to the Respondents, who issued and prompted re-
liance on that statement, as elsewhere they authored or posted The letter closes with refer-
ence to "the appointment set for Thursday, July 31st, at 12 o'clock" to "check . on a final
list " This isolated reference to the noon hour as the time for meeting does not even purport
to limit the time allowed for becoming a member, i e , "prior to August 1st," or by any time
on July 31
Similarly, the bulletin of July 15, referred to supra as indicating that employees had until
July 25, and not July 1, to join, added a dismissal warning to "those employees who have not
become members in good standing by the end of the month " Further and as noted supra, the
letter of July 19 ambiguously called for dismissal before August 1 of those who failed to bring
themselves into good standing, nodate being mentioned other than referring to dismissal What
procedure would have been adopted had the parties to the agreement net on July 25 or at any
later date prior to July 31, we need not attempt to guess Despite the Union's contention that
the employees had an uncertain extension beyond July 25 to the tune of actual discharge, the
extension to July 31 and especially notice thereof to the employees are clear, and were
clearly stated by one of the store stewards, who testified "They had five days to sign up
There was a five days grace period "8 Similarly, the union president sought to justify
Kulmatyzki's discharge by citing the July 31 deadline while unwarrantedly fixing the time at
noon of that day. °
E. Kulmatyzki
Kulmatyzki's schedule called for him to work until 1 p m on July 31 Not until the following
day was he notified that he had been discharged, the store manager so advising him in the
meantime, and early in the afternoon of the 31st, he had gone to the union office, applied for
membership, signed the necessary documents, and paid his dues (No initiation fee was re-
quired of "old" employees )
As brought out by the Union's counsel, Kulmatyzki had not on his prior half days off applied
for membership But he did just that on July 31. Whatever the risk, he had every right to wait
until the last day, and as found, this was the last day, without limitation to the noontime period
Whether or not the lady at the union office, who was serving temporarily while others were
attending a funeral, had the knowledge and authority to act is not to be questioned If Kulmatyzki
properly applied, and I find that he did, the responsibility to find someone in authority at the
union office was not his Nor would a proper application be less such had a union officer been
there and rejected it. We do not reach any question of waiver by acceptance of the application,
and therefore need not consider the suggested discrepancy between the testimony that the
application was returned by letter mailed the same day, and Kulmatyzki's that he had not
received the letter prior to his calling at the union office on August 4
This discharge was discriminatory and in violation of the Act As noted infra the Respond-
ents could not deprive an employee of the right which remained to him to make proper appli-
cation during the remainder of that day The action which they took was necessarily subject
to that right. The Union, which admittedly caused the discrimination, was also guilty of
restraint and coercion
8As again,,t the Company, this quotation is not accepted as an admission but as testimony
to an existing fact by one who knew the facts. If the Union unlawfully forced discharges, the
Company, with equal knowledge of the facts, unlawfully effected them
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. McDonald
McDonald was notified of his discharge at about 4:30 p. m on July 31 in the Jamaica store.
His earlier statements that he would wait to see what the employees would get under the con-
tract ( referring specifically to the question of reduction of hours) suggests an indefinite delay
such as was not countenanced by the contract. It may be, nevertheless, that he intended to
join before the last grace period mentioned to him. But he was at least confused in this con-
nection as he testified that his store steward told him that he had until August 5 to loin, and
then that he did not discuss joining the Union with the steward but that others whom he could
not recall spoke of the August 5 deadline It was clear to me that in the latter connection
McDonald was referring to rank-and-file employees; but then, in answer to a leading question
asked to refresh his recollection, he said that-the store manager had said this. (It may be that
reference to a 5-day extension combined with talk of July 31 led McDonald to superimpose
one on the other But I should note also that he attempted to draw overly fine distinctions in
his answers, to the point where he clearly erred, where the intent of the question was quite
clear .) I credit the denials by both his steward and the store manager that they mentioned an
extension to August 5.
Whether or not as he testified McDonald after his discharge mailed to the Union the mem-
bership application card previously given to him, the card never having been received and he
making no mention of it when he called at the union office on August 4, it is clear that he did
not on July 31 or before join the Union (his alleged application by mail did not include a tender
of dues), and that he did not comply with the agreement as put into effect and as extended by 5
business days.9
I have noted his reference to action taken with respect to another employee on August 4 at
the union office Not only does it appear that a special arrangement had been timely made in
that other case because of the injection of a religious issue, but it has not been shown that
McDonald thereby acquired any additional rights Nor can he rest on the statement made to
him that the union office was closed that day, it is not at all clear that he could have gotten
there in time in any event (considering the Union's normal hours, not the Company's); the
tender which he allegedly did make was inadequate, and it does not appear that he sought out
the steward who had solicited his membership.
If McDonald's was an error rather than a wilful refusal, and if it seems harsh to penalize
him for such an error, he (as did Kulmatyzki) waited while the zero hour approached, but he
failed to take the necessary actionasitpassed Whatever McDonald's sympathies, his reasons
for not joining , or his intentions, he was not entitled to special handling Kulmatyzki was care-
ful to observe deadline, McDonald was at least careless.
As for the item that McDonald was discharged at the end of his working day but while he yet
had the right to join the Union, the alternative to permitting this last-minute action against
him while still recognizing his right to defeat it would be to insist on action being taken after
normal hours or on extension of employees' rights until at least the following day The
realities of the situation include the following elements: McDonald lost no wages because he
was discharged on the afternoon of the last day, his right to join or to apply was not thereby
limited, so that he could have pressed a valid claim as has Kulmatyzki; he himself testified
to recognition of his rights as he referred to his alleged attempt to join by mailing an appli-
cation that evening. The discharge action taken was subject to reversal as has been seen in
Kulmatyzki's case, it became valid only with passage of the remainder of that day and
McDonald's failure to seek membership So far from limiting his rights, the action taken
against hint may have served as additional warning of his jeopardy. I find no violation in
McDonald's discharge.
The General Counsel argues that a technically premature violation is an unfair labor prac-
tice regardless of lawful intent, citing Injection Molding Company, 104 NLRB 639 In that case
there was no such expressed contrast between lawful intent and technical violation as the
General Counsel here recognizes and suggests, nor could it have been argued that the situation
paralleled the facts herein. The discharge was there effected 10 days before expiration of
the 30-day period In the instant case there was prematurity by a few hours with respect to
9Having found the general extension to July 31, I have applied it to McDonald although he
did not admit knowledge of such extension and did not claim reliance on it. He denied his
steward's testimony that he told McDonald he would have to join by July 25, and then before
August 1.
BUSCH KREDIT JEWELRY CO., INC. 1223
the time allowed to join, but no deprivation of work since the discharge was declared at the
end of McDonald's working day. The surrounding elements have been set forth supra, and there
is here no blanket condonation of premature discharge situations, which differ generally
from and lack the factual elements of this case.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents, set forth in section II, above occurring in connection with
the operations of the Company described in section I, above, have a close, intimate, and sub-
stantial 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
IV. THE REMEDY
Since it has been found that the Respondents have engaged in and are engaging in certain
unfair labor practices affecting commerce, I shall recommend that they cease and desist
therefrom and take certain affirmative action to effectuate the policies of the Act.
It has been found that the Company, by discharging and failing to reinstate Kulmatyzki, dis-
criminated against him in regard to his hire and tenure of employment in violation of Section
8 (a) (3) and (1) of the Act, and that the Union caused the Company so to discriminate, and
itself restrained and coerced employees in violation of Section 8 (b) (2) and (1) (A) of the Act
I shall therefore recommend that the Company offer to Kulmatyzki immediate and full rein-
statement to his former or substantially equivalent position 10without prejudice to his
seniority or other rights and privileges I shall further recommend that the Company and the
Union, jointly and severally, make him whole for any loss of pay he may have suffered by
reason of the discriminatory action aforementioned by payment to him of a sum of money equal
to that which he would normally have earned less his net earnings u which sum shall be com-
puted 12 on a quarterly basis during theperiod fromthe discriminatory discharge to the date of
a proper offer of reinstatement. 13 It is also recommended that the Board order the Company
to make available to the Board upon request payroll and other records to facilitate the checking
of the amount of back pay due 14
Since "this case involves only (one) isolated act of discrimination which grew out of the
(valid) enforcement of a . union-security agreement, (and) the Respondents' conduct in the
past does not suggest the danger that other unfair labor practices will be committed in the
future," 15 I shall recommend only that the Respondents cease and desist from the unfair labor
practices found, and any like or related conduct
For the reasons stated in the subsection entitled "McDonald," I shall recommend that the
complaint be dismissed insofar as it alleges the discriminatory discharge of McDonald
Upon the basis of the above findings of fact and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. Department and Specialty Store Employees Union, Local 1499, Retail Clerks International
Association, AFL, is a labor organization within the meaning of Section 2 (5) of the Act.
2 By discriminating in regard to thehireand tenure of employment of William Kulmatyzki,
thereby encouraging membership in a labor organization, the Company has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act
to The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65
NLRB 827.
"Crossett Lumber Company, 8 NLRB 440. See alsoRepublic Steel Corporation v. N L R B ,
311 U S 7.
12 F. W Woolworth Company, 90 NLRB 289.
13 In the case of the Union, this date or the date on which the Union serves upon the Company
the written notice as set forth in section 2 b (1) of the recommendations hereinafter made,
whichever shall first occur, shall be the terminal date.
14F W Woolworth Company, supra.
15 Krambo Food Stores, Incorporated, 106 NLRB 870.
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By such discrimination, thereby interfering with, restraining, and coercing its employees
in the exercise of rights guaranteed in Section 7 of the Act, the Company has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. By causing the Company to discrirmnate in regard to hire and tenure of employment in
violation of Section 8 (a) (3) of the Act, the Union has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (2) of the Act.
5. By restraining and coercing employees in the exercise of the rights guaranteed in
Section 7 of the Act , the Union has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (b) (1) (A) of the Act.
6 The aforesaid labor practices are unfair labor practices affecting-commerce, within the
meaning of Section 2 (6) and (7) of the Act.
7 The Respondents have not engaged in unfair labor practices within the meaning of the Act
with respect to Edward McDonald.
[Recommendations omitted from publication.]
APPENDIX A
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, as amended, we
hereby notify our employees that:
WE WILL NOT encourage membership in Department and Specialty Store Employees
Union, Local 1499, Retail Clerks International Association, AFL, or any other labor or-
ganization by discharging any of our employees or discriminating in any other manner in
respect to their hire or tenure of employment, or any term or condition of employment.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce our
employees in the exercise of the right to self-organization, to form labor organizations,
to join or assist Department and Specialty Store Employees Union. Local 1499, Retail
Clerks International Association, AFL, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protection, or
to refrain from any or all of such activities, 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 in Section 8 (a) (3) of the Act.
WE WILL offer to William Kulmatyzki immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority or other rights and
privileges, and, jointly and severally with Department and Specialty Store Employees
Union, Local 1499, Retail Clerks International Association, AFL, make him whole for any
loss of pay suffered as a result of the discrimination against him
BUSCH KREDIT JEWELRY 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
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 members that:
LOCAL 57, INTERNATIONAL UNION OF OPERATING ENGINEERS 1225
WE WILL NOT require, instruct , or induce BuschKredit Jewelry Co., Inc., its officers,
agents, successors , or assigns , or any other employer to discharge employees because
they are not members in good standing in this labor organization , except in accordance
with Section 8 (a) (3) of the Act.
WE WILL NOT in any like or related manner cause or attempt to cause Busch Kredit
Jewelry Co., Inc., or any other employer , to discriminate against an employee in violation
of Section 8 (a) (3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce employees in the
exercise of the rights guaranteed in Section 7 of the Act.
WE WILL jointly and severally with Busch Kredit Jewelry Co., Inc., make William
Kulmatyzki whole for any loss of pay suffered as a result of the discrimination against
him.
DEPARTMENT AND SPECIALTY STORE EMPLOYEES
UNION, LOCAL 1499, RETAIL CLERKS INTER-
NATIONAL ASSOCIATION, AFL,
Labor Organization.
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.
LOCAL 57, INTERNATIONAL UNION OF OPERATING ENGI-
NEERS AND ITS BUSINESS AGENT, JOHN WHITE and JOHN
LAMANTIA and M .. A. GAMMINO CONSTRUCTION CO.,
Party to the Contract. Case No. 1-CB-128. June 4, 1954
SUPPLEMENTAL DECISION AND DETERMINATION
On December 11, 1951, the National Labor Relations Board
issued its Decision and Order in this case (97 NLRB 386)
which provided, among other things, that John Lamantia, whose
discriminatory discharge was caused by the Respondents,
was entitled to receive back pay from the Respondents for
the period of the discrimination against him. This Order was
enforced by a decree entered on February 3, 1953, by the
United States Court of Appeals for the First Circuit. (N. L. R. B.
v. Local 57, International Union of Operating Engineers et
al., 201 F. 2d 771.)
On July 28, 1953, a further hearing was held before Trial
Examiner Martin S. Bennett for the purpose of determining
the amount of back pay due Lamantia under paragraph 2 (b)
of the Board's Order. On September 3, 1953, the Trial Examiner
issued his Supplemental Intermediate Report finding that
Lamantia is entitled to back pay in the amount of $5,155.43
and recommending that the Respondents be required and directed
to pay such amount.
Thereafter the Respondents filed exceptions to the Supple-
mental Intermediate Report and a supporting brief. The Re-
spondents ' request for oral argument is hereby denied , because
108 NLRB No. 171.