Cottman Builders Supply Co., Inc.

National Labor Relations Board - Board Decisions

Nov 18, 1952

101 N.L.R.B. 327 (N.L.R.B. 1952)

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)