Busch Kredit Jewelry Co. Inc., 1214 (1962)

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 employees will be taken tohave indicatedtheir desire to constitute a separate bargaining unit and the Regional Director is instructed 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 purposes 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 KULMATYZKI

BUSCH KREDIT JEWELRY CO., INC. and EDWARD McDONALD

DEPARTMENT AND SPECIALTY STORE EMPLOYEES UNION,

LOCAL 1499, RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL and EDWARD McDONALD. Cases Nos. 2-CA2632, 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 proceeding, 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 affirmative 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 dismissal of that allegation of the complaint . Thereafter, both Respondents filed exceptions to the Intermediate Report and supporting briefs . The Company also requested oral argument. 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:

1. The Respondent Company, Busch Kredit Jewelry Co ., Inc.,

   New York , New York, its officers, agents, successors, and assigns , shall:

   1. Cease and desist from:

   (

   1. Encouraging membership in any labor organization by discharging 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 selforganization , to form labor organizations , to join or assist labor organizations, to bargain collectively 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.

      'Because no exceptions have been filed thereto, we adopt the Trial Examiner's recommendation 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:

      (

   1. 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, 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.

2. The Respondent Union, Department and Specialty Store Employees Union, Local 1499, Retail Clerks International Association, AFL, its officers, agents, successors , and assigns , shall:

   1. Cease and desist from:

      (

      1. Requiring, instructing, or inducing the Respondent Company, its officers , agents, successors , or assigns , or any other employer to discharge employees because they are not members in good standing in the Respondent Union, except in accordance 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:

      (

      1. Notify the Respondent Company, in writing, that it withdraws 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 Report entitled 'The Remedy.' (c) Post at its office in New York, New York, copies of the notice attached to the Intermediate Report and marked 'Appendix 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 representative , 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...