Krambo Food Stores, Inc.

National Labor Relations Board - Board Decisions

Aug 25, 1953

106 N.L.R.B. 870 (N.L.R.B. 1953)

870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
KRAMBO FOOD STORES , INCORPORATED and ALLIED IN-
DEPENDENT UNIONS , CUA and RETAIL GROCERY &
FOOD CLERKS UNION , LOCAL 1469 , RETAIL CLERKS
INTERNATIONAL ASSOCIATION , AFL. Cases Nos. 13-CA-
986 and 13-CB-180. August 25, 1953
DECISION AND ORDER
On April 2 , 1953 , Trial Examiner Lee J . Best issued his
Intermediate Report in the above - entitled proceeding , finding
that the Respondents Krambo Food Stores , Incorporated , herein
called the Company , and Allied Independent Unions, CUA , herein
called the Independent , 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. Thereafter , the Company and the Independent filed
exceptions to the Intermediate Report and supporting briefs.
The Company also requested oral argument.
The Company , the Independent , and the General Counsel
participated in oral argument before the Board on July 28,
1953.
The Board has reviewed the rulings of 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 , the contentions advanced
at oral argument , and the entire record in the case , and hereby
adopts the findings , conclusions , and recommendations of the
Trial Examiner only insofar as they are consistent with this
Decision and Order.
1. The Trial Examiner has concluded , as did the Board
majority in the prior representation case, ' that the following
union-security provisions , contained in the contract of January
19, 1951, between the Company and the Independent exceed the
limitations of Section 8 (a) (3) of the Act:
ARTICLE I
UNION JURISDICTION AND MEMBERSHIP
1. The Union shall be the sole representative and bar-
gaining agent for all KRAMBO employees in the Grocery
Department and Produce Department of the stores op-
erated by the Employer at 908 West Mitchell Street, 324
West North Avenue and 2607 West Fond du Lac Avenue,
Milwaukee, Wisconsin , and all future stores of Milwaukee
County, Wisconsin , excepting managers and assistant
managers. Employees working ( 15) fifteen hours or less
per week shall be excluded from the union shop provisions
198 NLRB 1320.
106 NLRB No. 148.
KRAMBO FOOD STORES, INCORPORATED 871
and shall not be required to join the union as a condition
of employment.
2. Any person to be covered by this agreement shall be
hired only on a 30-day trial basis, during which time Em-
ployees whose regular work week is over(15)fifteen hours
per week must apply for membership in the Union and
shall work under the provisions of this agreement, and
shall thereafter maintain membership in good standing in
the Union in order to maintain his or her employment.
Employees shall, after thirty (30) days of employment,
become members of the Union, and shall maintain mem-
bership in good standing as a condition of employment.
3. All new employees in the bargaining unit whose regu-
lar work week is over fifteen (15) hours shall file applica-
tion for membership in the Union and shall become mem-
bers of the Union within (30) thirty working days. The
Union agrees to accept all such new employees into mem-
bership upon the same terms and conditions as governed
by the admission of others to such membership. All em-
ployees of the Employer covered by the terms of this
agreement shall be members of this Union and shall remain
members thereof in good standing for the duration of this
agreement as a condition of employment.
On the basis of the record in the representation proceeding
the Board majority concluded that the foregoing provisions
were strongly susceptible of the interpretation, namely, that
employees who had more than 30 days of employment before the
effective date of the contract were required to become mem-
bers of the Independent forthwith. Such a contractual require-
ment unqualified, exceeds the permissible limits established in
Section 8 (a) (3) of the Act. In consequence, the Board majority
declined to consider evidence untimely proffered in the repre-
sentation case to show the actual intent and practice of the
parties with respect to the meaning of the disputed provisions.
Upon reexamination of the contract, in the context of further
evidence now before use, we unanimously? find that some
ambiguity exists in the union -security provisions of paragraphs
2 and 3 of article I of the contract. Accordingly, it is appro-
priate for us to look to extrinsic evidence to determine the
intent of the parties.'
The record establishes that on December 7, 1950, the Inde-
pendent won a Wisconsin Employment Relations Board election
over the charging Union, Retail Grocery & Food Clerks Union,
Local 1469, Retail Clerks International Association, AFL,
herein called the Retail Clerks, and on December 21, 1950,
the Independent won "an all-union shop" election under the
2 The Board is unanimous on all matters except that discussed in paragraph numbered 4,
infra, where separate views are explicitly set forth.
3Newton Investigation Bureau, 93 NLRB 1574.
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wisconsin Employment Peace Act. At the first bargaining
meeting between the Company and the Independent after the
election of December 7, 1950, the latter presented a typed list
of demands. After that meeting certain members of the Inde-
pendent's negotiating committee consulted with Arthur Sorenson,
the Independent's president, and drafted a proposed contract
which was submitted to the Company. Article I of this draft
reads:
UNION JURISDICTION & MEMBERSHIP
Section I. The Union shall be the sole representative and
bargaining agent of those classifications of employees
covered by this agreement in collective bargaining with
the Employer. All present employees who are members of
the Union shall maintain their membership during the
period of this agreement by the regular payment of dues.
Any person newly employed shall be employed only on a
thirty (30) day basis during which time he may be dis-
charged by the Employer without further recourse. All
employees must make immediate application for mem-
bership to the Union and shall work under the provisions
of this agreement and shall thereafter maintain membership
in good standing in the Union in order to maintain his or
her employment. All new employees who are not members
of the Union shall become members within thirty(30) days
or be discharged without further recourse.
Section II . Checkoff
Upon the receipt of written authorization from an em-
ployee the Employer will deduct from his pay the dues
payable by him to the Union . The Employer will make
such deductions from the first pay of the employee after
receipt of authorization , and monthly thereafter and trans -
mit to the authorized representative of the Union the ag-
gregate sum collected , together with an itemized state-
ment, showing the source thereof . The employer further
agrees to deduct from the employees pay all dues , initia-
tion fees and assessments and remit suchdeductions to the
above.
Section III. All Union Provisions
All new employees in the bargaining unit shall, upon their
engagement , file application for membership in the Union,
and shall become members of the Union within thirty (30)
days. The Union agrees to accept all such new employees
into membership upon the same terms and conditions as
governed the admission of others to such membership.
All employees of the Employer covered by the terms of
KRAMBO FOOD STORES, INCORPORATED 873
this agreement shall be members of this Union and shall
remain . members thereof in good standing for the dura-
tion of this agreement as a condition of employment, all
as provided in Section 111.06 ( 1) (c), Wis ., Stats., 1949.
At the next bargaining meeting , according to the uncontra-
dicted testimony of Morgan Selmer, the Company ' s negotiator,
the Company rejected the checkoff provisions contained in
section II , and suggested that the provisions dealing with union
membership be clarified to provide that all employees be given
a period of 30 days in which to join the Independent . The Inde-
pendent's negotiating committee , after discussing the Com-
pany's proposed changes with the membership , undertook the
preparation of a new draft . However , some of the members of
the committee were anxious to look at other union contracts
in the area . Accordingly , they arranged to consult with Edward
Stadelman , the business agent for the Retail Clerks, the Union
which the Independent had just defeated in the Wisconsin board
proceeding . Stadelman showed the committee members other
contracts and offered the services of Saul Cooper , the Retail
Clerks' attorney , in drafting a new proposed contract . Several
nights later certain members of the committee met Saul
Cooper in Stadelman ' s office and there drafted , with Cooper's
advice , a second proposed contract . That document in all mate -
rial respects is identical to the contract which the Company
and the Independent executed on January 19, 1951.4
The record now establishes that , when that contract was rati -
fied at a general membership meeting of the Independent,
Sorenson , the Independent ' s president , explained that under
the union - security provisions all employees old and new alike
had a 30 -day grace period after its execution before union
membership would be required . Accordingly , there can be
little doubt that the Independent and the Company intended to
execute a contract granting all employees the 30 -day grace
period required by Section 8 (a) (3) of the Act and that the
contracting parties thought that their agreement did just that.
In these circumstances , and as none of the acts here alleged
to have been discriminatory took place within 30 days after the
contract was executed , we now find that the contract of January
19, 1951 , reasonably construed in the light of surrounding cir-
cumstances, did not deprive any employee of the 30 -day grace
period required by Section 8 (a) (3) of the Acts We find , there-
fore , contrary to the Trial Examiner and our earlier holding
in the representation case , that the contract is lawful.
4In view of our holding herein that the union-security provisions of the contract of January
19, 1951, do not exceed the permissible limitations of Section 8 (a) (3) of the Act, we find it
unnecessary to pass upon the Respondents' contention that because of their participation in
the drafting of the contract the Retail Clerks cannot challenge its validity.
5See Bath Iron Works Corp., 101 NLRB 849; Coro Inc., and Coro Inc., of Rhode Island, 105
NLRB 718.
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner has further found that the Respondents
violated the Act by maintaining and enforcing their contract
of January 19, 1951, because the Independent did not secure
prior authorization under Section 9 (e) of the Act to enter into
a union - shop agreement . We reject this finding . Here, as noted
above, the Independent in an election conducted under the
Wisconsin Employment Peace Act secured authorization from
the Company' s employees to enter aunion - securityagreement.
This it did on January 19, 1951. Thereafter , by the amendments
of October 22, 1951, the Congress deleted from the Federal
statute those portions of Section 9 (e) which required authoriza-
tion by Board -conducted elections before unions could lawfully
enter into union -security agreements with employments subject
to the Act." In view of this congressional action , and the good
faith of the parties in securing from the Wisconsin board what
they thought to be the only authorization required to enter a
union - shop agreement , we do not believe that it would effectuate
the purposes of the Act as amended in October 1951 to hold
today that by maintaining and enforcing their agreement of
January 19, 1951, the parties acted unlawfully.' Accordingly,
we shall dismiss the complaint in this respect.
If the facts found in the preceding paragraphs had been
before us when we made our decision on the representation
case record , we would not have directed the election which
resulted in the certification of the Retail Clerks on December
2, 1952, as the exclusive representative of the Company's
employees . In the circumstances , we think that the certifica-
tion , which we nonetheless regard as having been properly
issued on the basis of the record then before us , should no
longer be treated as operative . Accordingly, we shall order
that the certification be accorded no further force or effect.
3. The Trial Examiner has found that both Respondents un-
lawfully discriminated against Raymond Boetcher and Edward
Gorski . We cannot agree with this finding.
The record establishes that the Respondent Company opened
its Southgate store , No. 20, about August 23, 1951. However,
no effort was made to require that employees there become
members of the Independent until the latter part of November
1951, when Night Foreman George Wrecke told the night
stockers that they were required to join. On December 10,
1951, Raymond Boetcher , who was first employed on September
20, 1951, applied for membership to Betty Hunt, local vice
chairman of the Independent, and tendered the initiation fee of
$3 and $1.50 for dues for the month of December . A contro-
6Public Law No. 189, 82nd Congress , 1st Session . Section (c).
7 See Davis Motor Company, 97 NLRB 125; Jersey Millwork Company, 97 NLRB 1452. In
conformity with an additional provision of the 1951 amendments of the Act, which requires
compliance with Section 9 ( f), (g), and (h) by unions entering into union-security agreements,
we note from our records that the independent was in compliance with those sections when
the contract of January 19, 1951, was executed.
KRAMBO FOOD STORES, INCORPORATED 875
versy arose over the question of whether the contract required
back dues to the date of his initial employment . Betty Hunt
refused Boetcher ' s $4.50 and called in Arthur Sorenson , presi-
dent of the Independent . When Sorenson arrived he had some
conversation with Boetcher and Betty Hunt , but was persuaded
by Store Manager Al Tanck to postpone the discussion until
the store closed. About 9 p. m. Sorenson held a " grievance
meeting" in the store basement which was attended by repre-
sentatives of the Independent , Tanck , Assistant Store Manager
Roy Carney , and all of the night employees including Boetcher
and Edward Gorski.
Sorenson told the gathering that all store employees had
paid dues for the first month of their employment and he
expected the practice to continue. He said , as the Trial
Examiner has found , that he expected all employees to pay
their dues according to the contract 30 days after employment,
and to pay the first month ' s dues voluntarily . Gorski and
Boetcher , whom the Trial Examiner has credited , both testi-
fied that Tanck told the meeting that it was illegal to require
dues for the first 30 days of employment . At the end of the
meeting Sorenson agreed to accept $ 4.50 from nonmembers to
cover the initiation fee and dues for 1 month if the employees
would pay their back dues on the next payday . Some of the non-
members, including Gorski , signed up on this basis . Boetcher,
however , refused to pay any back dues.
When Boetcher reported on the next night that he was
scheduled for work , December 13 , 1951 , his timecard had
been removed from the rack. Carney told him he would have
to join the Independent and when Boetcher agreed to do so,
Carney took him to see Betty Hunt . According to Boetcher's
testimony , she told him that he owed 9 or 10 dollars and that
she would not accept less unless he agreed to pay his back
dues within a definite period. Boetcher replied that it had not
been proved to him why he should pay any back dues and as
he refused to do so, Carney paid himhis wages and discharged
him.
With respect to Gorski , the record reveals that he paid
$4.50 reluctantly on the night of December 10, 1951, and ad-
vised the Independent that he would talk to his mother about
back dues and let the Union know his answer when he next
reported to work. When he reported on December 13, 1951,
Carney asked him if he had decided to pay his back dues and
Gorski replied that he would not pay them. Gorski was then
paid off and discharged . At the same time the Union refunded
the $4.50 that Gorski had paid the previous Monday evening.
About 1 week later Gorski returned to the store and told Carney
he had decided to pay his back dues . Carney conferred with
Golda Rimer , a representative of the Independent, and then
agreed to reinstate Gorski . Whereupon Gorski returned to work
and paid his back dues before he left the store that night.
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner has found that both Respondents violated
the Act by causing and effecting the layoff or discharge of
Boetcher and Gorski because they refused to pay the Inde-
pendent dues dating back to the day of their original employ-
ment with the Company. We cannot agree with this finding as
there is no indication in the record that either Boetcher or
Gorski ever offered to pay any back dues . Indeed , Gorski,
according to his own testimony , refused to pay any back dues
on the day he was laid off and did not even know for what
months the Independent was requesting back dues until he
returned to the store a week after his layoff and resumed work.
In these circumstances we must reject the Trial Examiner's
finding that he was laid off or discharged until he agreed to
join the Union and pay dues back to the date of his initial
employment . Instead , we find that Gorski was lawfully dis-
charged under the contract on December 13, 1951, for re-
fusing to tender any back dues to the Independent . Accordingly,
we shall dismiss the complaint insofar as it alleges that his
discharge was unlawful.
According to his credited testimony , Boetcher , unlike Gorski,
was asked by Betty Hunt to pay 9 or 10 dollars back dues before
he was discharged on December 13, 1951. ' However , he also
testified that he never offered to pay anything more than the
initiation fee and dues for the month of December . As he was
present at the meeting when Sorenson said that dues for the
first month were voluntary and Tanck said they were illegal,
had Boetcher any intention to abide by the terms of the con-
tract he would certainly have offered to pay the initiation fee,
current dues for the month of December , and back dues for
October and November. This he did not do, nor is there any
showing that such an offer would have been a futile gesture on
his part .9 In these circumstances we cannot find his discharge
unlawful and shall dismiss the complaint in this respect.
4. The Board majority finds, in agreement with the Trial
Examiner , that the Independent violated Section 8 (b) (1) (A)
and (2) of the Act and that the Company violated Section 8 (a) (1)
and (3 ) by causing and effecting the withholding of vacation
pay from Roger Biesel , John Mayer , and Peter Voeller as a
9 The Trial Examiner has found that this request included dues for the first month of
Boetcher ' s employment, September 1951, as the initiation fee of $3 and dues of $1.50 per
month for the months of September, October , November , and December, would have amounted
to only $9. However , Boetcher testified that Betty Hunt in his presence asked the clerk in
the company office when he was first employed , and the clerk replied that he had been em-
ployed in August. Boetcher made no attempt to correct her. Accordingly, it would not be un-
reasonable to assume on the present record that while Boetcher may have been asked to pay
dues for the first month of his employment , the Independent did not intend to do so. However,
in view of Boetcher ' s refusal to tender anything but the initiation fee and dues for the month
of December , we need not here decide, for the reasons set out below, whether the Independent's
demand that Boetcher pay dues for the first month of his employment was inadvertant or
intentional. Nor do we here decide whether the demand would be violative of the Act had it
been intended.
9Cf. Utah Construction Co., 95 NLRB 196, 204.
KRAMBO FOOD STORES, INCORPORATED 877
result of their failure to pay back dues required of them by
the Independent . In reaching this conclusion , however, we do
not rely upon the reasons advanced by the Trial Examiner.
It is admitted that the Respondents discriminated against
Biesel , Mayer , and Voeller by withholding their vacation pay.
However , the Respondents and our dissenting colleagues urge
that this was permissible discrimination within the meaning
of the proviso of Section 8 (a) (3) of the Act. We cannot agree.
It is clear that in Section & (a) (3) and 8 (b) (2) of the Act the
Congress barred discriminatory treatment of employees based
upon union membership because such treatment might dis-
courage or encourage union affiliation-- a matter which the
Congress determined should in general be left to the employees'
own uncoerced judgment . Except for the proviso to Section
8 (a) (3), this prohibition was complete and all - inclusive and
applied to all forms of discrimination and all employees,
whether union members or not . In the proviso, which in effect
is repeated in Section 8 *(b) (2), Congress permitted one excep-
tion to this all - inclusive ban, namely , employers and unions
under certain circumstances were allowed to require that
employees join or maintain their membership in a union as a
condition of employment . Nothing in the Act or its legislative
history persuades us that the union - shop provisos to Section
8 (a) (3) and 8 (b) (2) were designed to give employers and
unions a license to use various discriminatory devices, short
of discharge , to coerce an employee to join the union while
still holding over his head the alternate threat of discharge
which the statute sanctions.'°
Were we to accept the views of our dissenting colleagues,
we should have to disregard the expressed intention of the
Congress to protect minority groups of employees against
discrimination by unions and employers alike . Under Section
9 (a) of the Act, a union , in acquiring the right to be the ex-
clusive representative of all employees in a bargaining unit,
also incurs the obligation to represent all employees , so long
as they remain employees , "without hostile discrimination,
fairly, impartially and in good faith. " " There is a concomi-
tant obligation upon employers to treat all employees in the
bargaining unit without discrimination .10 These obligations, in
this instance , have not been lived up to by the Company and
the Independent.
Further , we are not persuaded by our dissenting colleagues
that either the legislative history of the Taft-Hartley amend-
ments, or the use of the term "any discrimination" which
10 Since the issue is not here presented, we do not, as our dissenting colleagues appear to
assume, pass on whether or not a lesser penalty would be permissible if coupled with clear
abandonment of the right of discharge ; nor d0 we pass on whether or not a lesser penalty
could be inflicted only if provided for by a specific contract provision.
"Steele v. Louisville & Nashville R.R. Co., 323 U. S. 192, 203-204 ; Wallace Corp. v.
N. L. R. B ., 323 U . S. 248, 255.
l2Ibid.
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appears only in the second proviso to Section 8 (a) (3), justifies
the withholding of vacation benefits from union members who
are delinquent in their dues.13 In our view, as the Independent
never abandoned its right to demand their discharge, the with-
holding of vacation benefits from Biesel, Mayer, and Voeller
was an additional discrimination, over and above the threat of
discharge, and not a lesser one. We find no legislative sanction
for the imposition of supplementary discrimination of this
character.
It is evident that the provisos to Section 8 (a) (3) were aimed
at a practice thought permissible under the Wagner Act, namely,
the discharge or refusal to hire nonmembers where a union
refused to admit them to membership. It was this unchecked
discrimination which Congress sought to eradicate. The provisos
were never intended to open the door to the use of various and
ingenious forms of discrimination against an employee in order
to harass and coerce him into joining the union. The Court of
Appeals for the Second Circuit recently said, in enforcing a
Board finding that an employer had violated the Act by carrying
out a contract which gave retroactive wage increases to union
members only:
The employer makes one additional--and feeble--argu-
ment, which we speedily reject, based upon the "closed-
shop" proviso to the Wagner Act § 8 (3), in effect at the
time of these violations. That proviso allowed an employer
to agree with a union "to require as a condition of employ-
ment membership therein." Since discriminatory hiring
and firing were thus legal in a closed shop, says the em-
ployer, a lesser discrimination - i.e., in retroactive pay-
ment of wages, vacation benefits, etc. - was also legal.
Reason as well as statutory text disagree. The proviso
was a specific exception to what would otherwise have
been a violation of the general anti-discrimination rule
laid down in old § 8 (3). The purpose of the closed-shop
proviso was to permit what was then thought to be a unify-
ing influence in labor relations, i.e., one union represent-
ing and supported by all employees bargaining with one
employer. No such rational justification for discrimina-
tion in working conditions exists; the effect of this kind of
discrimination is indisputably discordant, divisive, and
conducive to conflict and bad feeling in the plant. We think
is The applicable part of the proviso reads:
Provided further, That no employer shall justify any discrimination against an employee
for nonmembership in a labor organization (A) if he has reasonable grounds for believing
that such membership was not available to the employee on the same terms and condi-
tions generally applicable to other members, or (B) if he has reasonable grounds for be-
lieving that membership was denied or terminated for reasons other than the failure of
the employee to tender the periodic dues and initiation fees uniformly required as a
condition of acquiring or retaining membership; .. .
KRAMBO FOOD STORES, INCORPORATED 879
that Congress never meant , by implication or otherwise,
to allow such a patently unfair and labor- strife -provoking
policy in industries under its control.'
Nor are we persuaded that the use of the words "any dis-
crimination" in the second proviso to Section 8 (a) (3) sanc-
tions simultaneous forms or threats of discrimination not
theretofore contemplated under the Act. A reading of the
second proviso clearly shows that it was designed further to
limit, and not to expand, the narrow discrimination allowed.
Accordingly, we believe that by the use of the words "any
discrimination" the Congress in 1947 did not intend to enlarge
the area of permissible discrimination under existing law but,
on the contrary, sought to further circumscribe the allowable
area of discrimination. 's
In view of the foregoing we find that the Respondents have
unlawfully withheld vacation benefits from the Company's em-
ployees; and we shall accordingly order that they cease and
desist therefrom, and make whole Peter Voeller for the unlaw-
ful discrimination against him.ie
5. The Trial Examiner has found that because of his refusal
to pay dues to the Independent, the Respondent also unlawfully
discriminated against Voeller by causing and effecting a reduc-
tion in hours of employment after the second week of Septem-
ber 1952. We unanimously find that the evidence does not
warrant such a holding.
The record establishes that Marquette University, the Com-
pany's principal source of part-time summer employees,
desires that its students restrict their outside employment
during the school year to 20 hours per week. To comply with
this policy the Company hires a number of full-time employees
each fall to do some of the work performed by the students
during the summer vacation period. Accordingly, adjustments
were required during the month of September. As the record
establishes that as early as the first week in October, Voeller's
hours of employment, like those of other student employees,
became relatively stable at a point just below the limit re-
quested by the University, we cannot find that he was unlaw-
fully discriminated against in this respect.
THE REMEDY
The Trial Examiner recommended that a broad cease-and-
desist order be entered against the Respondents. However, this
case involves only three isolated acts of discrimination which
i4N. L R. B. v. Gaynor News Co., 197 F. 2d 719. Certiorari granted 345 U. S. 902.
s Insofar as the Board's decision in Firestone Tire & Rubber Company, 93 NLRB 981, is
inconsistent with our decision herein, it is hereby overruled.
16 Our order in this respect is limited to Voeller, as the record establishes that Biesel and
Mayer have already received their vacation pay which had been unlawfully withheld.
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grew out of the enforcement of a valid union - security agree-
ment. The Respondents ' conduct in the past does not suggest
the danger that other unfair labor practices will be committed
in the future . Therefore , we shall only order the Respondents
to cease and desist from the unfair labor practices found, and
any like or related conduct.
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 Krambo Food Stores , Incorporated, Mil-
waukee , Wisconsin , its officers , agents, successors, and
assigns , shall:
(a) Cease and desist from:
(1) Withholding vacation pay, or in any other manner dis-
criminating against its employees in regard to hire or tenure
of employment , or any term or condition of employment, to
encourage or discourage membership in any labor organiza-
tion , except to the extent permitted by the proviso to Section
8 (a) (3) of the Act, as amended.
(2) In any like or related matter interfering with , restrain-
ing, or coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
(b) Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(1) Post at all of its stores in Milwaukee County, Wisconsin,
copies of the notice attached hereto as Appendix A. Copies of
said notice , to be furnished by the Regional Director for the
Thirteenth Region , shall , after being duly signed by the Re-
spondent Company's representative , be posted by it immediately
upon receipt thereof , and maintained by it for sixty (60) con-
secutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent Company to
insure that such notices are not altered, defaced , or covered
by any other material.
II. Respondent Union , Allied Independent Unions, CUA, its
officers , agents, successors , and assigns , shall:
(a) Cease and desist from:
(1) Requiring , instructing , inducing , or otherwise causing
the Respondent Company, its officers , agents, successors, or
assigns, to withhold vacation pay, or in any other manner
discriminate against its employees in regard to hire or tenure
of employment , or any term or condition of employment, be-
cause of their failure or refusal to become members of, or
maintain membership in, the Respondent Union , except to the
extent permitted by the proviso to Section 8 (a) (3) of the Act,
as amended.
KRAMBO FOOD STORES, INCORPORATED 881
(2) In any like or related manner interfering with, restrain-
ing, or coercing employees of Krambo Food Stores, Incor-
porated, its successors or assigns, in the exercise of the
rights guaranteed in Section 7 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 in its business offices in the
Milwaukee, Wisconsin, area, where notices to members are
customarily posted, copies of the notice attached hereto as
Appendix B. Copies of said notice, to be furnished by the
Regional Director for the Thirteenth Region, shall, after being
duly signed by official representatives of Allied Independent
Unions, CUA, or its successors, be posted by it immediately
upon receipt thereof, and maintained by it for sixty (60) con-
secutive days thereafter in conspicuous places, including all
places where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent Union to
assure that such notices are not altered, defaced, or covered
by any other material.
(2) Mail to the Regional Director for the Thirteenth Region
copies of the notice attached hereto as Appendix B for posting,
the employer willing, in all stores of Krambo Food Stores, In-
corporated, in Milwaukee County, Wisconsin, in places where
notices to employees are customarily posted. Copies of said
notice to be furnished by the Regional Director for the
Thirteenth Region, shall, after being signed as provided for
herein, be forthwith returned to the Regional Director for said
posting.
III. Krambo Food Stores, Incorporated, its officers, agents,
successors, and assigns, and Allied Independent Unions, CUA,
its officers, representatives, and agents, or its successors, and
the officers, representatives, and agents of its successors,
jointly and severally shall take the following additional affirma-
tive action designed to effectuate the policies of the Act:
(a) Immediately pay to Peter Voeller all vacation pay herein
found to have been discriminatorily withheld from him by the
Respondent Company.
(b) Upon request, make available to the Board and its agents
for examination and reproduction all of their books and records
necessary to analyze, determine, and establish the amount of
vacation pay due Peter Voeller.
(c) Notify the Regional Director for the Thirteenth Region in
writing within ten (10) days from the date of this Order what
steps the Respondents have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges (1) that the Respond-
ents have violated the Act by maintaining and enforcing their
contract of January 19, 1951; (2) that the Respondents have
violated the Act by causing and effecting the discharge of
Edward Gorski and Raymond Boettcher; and (3) that the Re-
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondents have violated the Act by causing and effecting a
reduction in the working hours of Peter Voeller.
IT IS FURTHER ORDERED that no further force or effect
be accorded our certification of December 2, 1952, in Case
No. 13-RC-2379.
Members Murdock and Styles, dissenting in part:
We concur in the majority decision except insofar as it finds
that by causing and effecting the withholding of vacation pay
from Roger Biesel, John Mayer, and Peter Voeller until they
paid delinquent dues owed the Independent, the Company
violated Section 8 (a) (1) and (3) of the Act and the Independent
violated Section 8 (b) (1) (A) and (2).
We perceive nowhere in the Act or its legislative history a
mandate that the Board hold that a form of discrimination less
than discharge is not a sanction available to a union for dues
delinquency under a valid union-shop contract. The proviso to
Section 8 (a) (3) uses the phrase "any discrimination." Further,
when the Taft-Hartley amendments were being considered by
the Congress, the Senate Committee in charge of the bill, in
explaining the companion provision in Section 8 (b) (2), said
in its Report"
The labor organization may not persuade or attempt to
persuade the employer to discriminate against an employee
except for two reasons : First, that the employee has lost
his union membership by failing to tender the dues or
initiation fees uniformly required as a condition of mem-
bership; [ second , that the employee, at a time when the
Board would not entertain a petition to determine repre-
sentation pursuant to section 9 (c) (1) (A), has engaged in
activity on behalf of another labor organization or in
activity having as its objective the termination of the
exclusive representative status of the union.] It is to be
observed that unions are free to adopt whatever member-
ship provisions they desire , but that they may not rely
upon action taken pursuant to those provisions in effecting
the discharge of, or other job discrimination against, an
employee except in the two situations described. (Emphasis
supplied.)"
The use of the words "any discrimination" in Section 8 (a) (3)
and the use by the Senate Committee of the words "or other
job discrimination," in our judgment, clearly show that it was
contemplated that Section 8 (a) (3) and 8 (b) (2) authorized
other, and presumably lesser , discriminations than discharge
under a valid union-shop contract. That is the situation which
confronts us in this case.
17 Senate Report No 106 on S. 1126, 80th Cong., 1st Sess., p. 21.
Is The provision referred to in the part of the quotations enclosed in brackets was not enacted
into law.
KRAMBO FOOD STORES, INCORPORATED 883
Beisel , Mayer, and Voeller were told that their vacation
pay was being withheld by the Company until they paid back
dues to the Independent. Beisel and Mayer paid their dues
and thereupon recovered their vacation pay. At the time of
the hearing herein Voeller was still working for the Company,
although he had not paid his union dues nor received his vaca-
tion pay. In the circumstances it seems clear to us that the
discrimination against these three employees falls into the
less-than-discharges category of conduct which the unanimous
Board upheld in the Firestone case , and which we still believe
to be the proper interpretation of the Act.
The majority does not take issue with our conclusion that
discrimination less than discharge is a permissible remedy
under the Act for dues delinquency under a lawful union-secu-
rity contract. Yet, our colleagues apparently take the position
that the parties to a union-security contract may not lawfully
invoke against a delinquent employee a lesser discrimination
unless it is specifically provided for in the contract. In our
opinion, it is axiomatic that the greater includes the lesser. It
therefore follows that where, as here, the contract permits the
ultimate discrimination (discharge) provided by law, it is not
unlawful for the parties to engage in a lesser form of discrimi-
nation against a dues delinquent.
As our disagreement with our colleagues is limited to the
only allegation in the complaint which has been sustained, we
would dismiss the complaint in its entirety.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Re-
lations 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 or discourage membership
in Allied Independent Unions, CUA, or any other labor
organization , by withholding vacation pay from our em-
ployees, or discriminating in any other manner in regard
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 right to
exercise or refrain from exercising the rights guaranteed
in 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, as amended.
WE WILL immediately pay to Peter Voeller all vaca-
tion pay found to have been discriminatorily withheld from
322615 0 - 54 - 57
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him for refusal to maintain his membership in Allied
Independent Unions, CUA.
All our employees are free to become , remain , or to refrain
from becoming or remaining , members of Allied Independent
Unions , CUA, or any other labor organization , except to the
extent that this right may be affected by an agreement in con-
formity with Section 8 (a) (3) of the Act, as amended.
KRAMBO FOOD STORES, INCORPORATED,
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.
APPENDD B
NOTICE TO ALL MEMBERS OF ALLIED INDEPENDENT
UNIONS, CUA, OR ITS SUCCESSORS, AND TO ALL
EMPLOYEES OF KRAMBO FOOD STORES, INCORPORATED.
Pursuant to a Decision and Order of the National Labor Re-
lations Board , and in order to effectuate the policies of the
National Labor Relations Act, as amended, we hereby notify
you that:
WE WILL NOT require , instruct , or induce Krambo
Food Stores , Incorporated , to withhold vacation pay, or in
any other manner discriminate against its employees in
regard to hire or tenure of employment , or any term or
condition of employment , because they are not members
in good standing of Allied Independent Unions , CUA, or its
successors , except in accordance with Section 8 (a) (3) of
the Act, as amended.
WE WILL NOT restrain or coerce employees of Krambo
Food Stores , Incorporated, its agents , successors, or
assigns , in their right to exercise or refrain from
exercising the rights guaranteed in Section 7 of the Act.
WE WILL pay to Peter Voeller all vacation pay found
to have been discriminatorily withheld from him by Krambo
Food Stores, Incorporated.
ALLIED INDEPENDENT UNIONS, CUA,
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.
KRAMBO FOOD STORES. INCORPORATED
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
885
By reason of charges and amended charges filed herein, and pursuant to an order of con-
solidation thereof, the General Counsel of the National Labor Relations Board, herein sepa-
rately designated as GeneralCounsel and the Board, by the Regional Director for the Thirteenth
Region, issued a consolidated complaint on August 8,1952, against Krambo Food Stores, Incor-
porated, and Allied Independent Unions, CUA, respectively called herein Respondent Company
and Respondent Union, and collectively sometimes called Respondents. By reason of various
amendments, and to clarify the issues without extending the scope of alleged violations, the
General Counsel at the hearing on October 17, 1952, filed a "Text of Consolidated Complaint
Including Amendments to Date," herein called the complaint, alleging that the Respondents
engaged in and continued to engage in unfair labor practices affecting commerce within the
meaning of Section 8 (a) (1) and 8 (a) (3). Section 8 (b) (1) (A) and 8 (b) (2), and Section 2 (6)
and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act.
Copies of the basic charges, amended charges, order of consolidation, complaint with all
amendments, notice of hearing, and all other pertinent processes, were duly served upon
Respondents.
With respect to the unfair labor practices, and within the period limited by Section 10 (b) of
the Act,l the complaint in substance alleges that:
1. Respondent Company failed and refused to afford Retail Grocery and Food Clerks
Union, Local 1469, Retail Clerks International Association, AFL, herein called the
Charging Union, equal opportunities with Respondent Union to meet with and address
employees on Company premises;
2. Respondents maintained, applied, and enforced a collective-bargaining agreement
previously entered into without complying with the procedural requirements of Section
8 (a) (3) as implemented by Section 9 (e) (1) of the Act with respect tounion-security
clauses, as then provided by the Act, which failed to provide a period of 30 days follow-
ing the effective date of said agreement in which membership in Respondent Union is not
required as a condition of continued employment by Respondent Company of employees
hired prior to the effective date of said agreement;
3. Respondents in the maintenance, application, and enforcement of the aforesaid col-
lective-bargaining agreement required as a condition of continued employment of all
employees of Respondent Company the payment to Respondent Union of dues back to the
dates of their initial employment or to the effective date of the agreement , whichever is
later; and continually threatened said employees with discharge as a penalty for refusing
to pay or becoming delinquent in the payment of dues to Respondent Union;
4. Respondents on or about December 13, 1951, discharged or caused to be discharged,
or otherwise discriminated against in regard to their hire or tenure of employment to
encourage or discourage membership in a labor organization , employees Raymond
Boettcher and Edward Gorski for failure or refusal to pay to Respondent Union dues
dating back to the dates of their initial employment;
5. Respondents in September 1951 discriminated against employee Roger Biesel by
withholding and/or causing to be withheld vacation pay due him by Respondent Company
until such time as he agreed to pay and did pay delinquent dues to Respondent Union;
6. Respondents on or about August 23, 1952, discriminated against employee John
Mayer by withholding and/or causing to be withheld vacation pay due him by Respondent
Company for the reason that he refused to pay dues to Respondent Union;
7. Respondents on or about August 28, 1952, discriminated against employee Peter
Voeller by withholding and/or causing to be withheld vacation pay due him by Respondent
Company for the reason that he refused to pay dues to Respondent Union; and by there-
after discriminatorily curtailing his hours of work to encourage membership in a labor
organization.
iCopies of the original charges were delivered by registered mail to Respondent Company
on December 19, 1951, and to Respondent Union on January 28, 1952, Six months prior to the
respective dates of service marks the beginning period within which acts and conduct of the
Respondents may be made the basis of findings of unfair labor practices under Section 10 (b).
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent Company and Respondent Union filed separate answers to the complaint,
each denying all allegations of unfair labor practices . Respondent Company amended its
answer to assert that the charging Union is estopped to file a charge attacking the legality of
the collective -bargaining agreement because it voluntarily participated in prior proceedings
of the Wisconsin Employment Relations Board, as a result of which Respondent Union was
certified as bargaining representative and authorized to negotiate an "All Union Agreement"
with Respondent Company. It also asserts that the Board for the same reason cannot take
jurisdiction herein.
Motion of Respondents to strike all charges for vagueness , failure to comply with the
Board's Rules and Regulations , etc., and to dismiss the complaint for lack of jurisdiction was
denied . It is well established that the jurisdiction of the National Labor Relations Board may
not be ousted by prior State action , even where , as here, all parties participated in the State
proceedings.2
Pursuant to notice , a hearing was conducted at Milwaukee , Wisconsin , on October 16, 20,
21, 22 , 23, and 24 , 1952 , November 17, 18 , 19, 20, 24 , 25, 26 , and 28 , 1952, and December 1,
1952 , before the undersigned Trial Examiner duly designated by the Chief Trial Examiner.
The General Counsel , Respondent Company , Respondent Union, and the charging Union were
represented by counsel . Full opportunity to be heard , to examine and cross-examine witnesses,
and to introduce evidence bearing upon the issues was afforded to all parties . At the conclusion
of the hearing counsel for Respondent Company argued orally upon the record . All other
parties waived oral argument . Since the hearing, by consent of counsel, a tabulation from
records of Respondent Company showing effective hiring dates of employees eligible for union
membership on January 19 , 1951 , was admitted in evidence as part of the record. Written
briefs were in due course filed with the Trial Examiner by counsel for the General Counsel,
Respondent Company , and Respondent Union , all of which have been duly considered. At the
close of the hearing motion of the General Counsel to conform the pleadings to the proof as to
formal matters was allowed.
Upon the entire record in the case and from observation of the witnesses , I make the fol-
lowing:
FINDINGS OF FACT
I. BUSINESS OF RESPONDENT COMPANY'
Krambo Foods Stores, Incorporated , is a Wisconsin corporation with its principal office
located in Appleton , Wisconsin . It is engaged in the retail grocery business , operating 22
retail food stores located in various municipalities and communities throughout the State of
Wisconsin , including 5 such stores in the area of the city of Milwaukee. In regular course
and conduct of business , it annually purchases food products valued in excess of $1,500,000,
of which more than $ 1,000 ,000 in value is received indirectly at its various Wisconsin stores
from points outside the State . The annualcost of food products directly received by Respondent
Company at various stores in Wisconsin from sources outside the State is in excess of $ 500,000.
The fact that the unit recognized for collective bargaining herein was limited to stores of the
Respondent Company located in Milwaukee County, Wisconsin , does not preclude jurisdiction
of the Board , since it is well established that the Board will consider the total business of any
integrated enterprise when seeking to determine whether or not to assert jurisdiction over a
part of such enterprise.4
It is , therefore, concluded that Respondent Company is engaged in commerce within the
meaning of the Act, and that it will effectuate the policies of the Act for the Board to assert
jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
Allied Independent Unions, CUA, and Retail Grocery & Food Clerks Union, Local 1469, Re-
tail Clerks International Association, AFL, are labor organizations within the meaning of
Section 2 (5) of the Act.
2 La Crosse Telephone Corp v. Wisconsin Employment Relations Board , 336 U. S. 18.
3 See stipulation by counsel for the General Counsel and counsel for Respondent Company.
4 The Southland Corporation, Oak Farms Division, 94 NLRB 1563
KRAMBO FOOD STORES, INCORPORATED
III. THE UNFAIR LABOR PRACTICES
A. The contract in controversy
887
Pursuant to authorization of the Wisconsin Employment Relations Board, Respondent Com-
pany and Respondent Union on or about January 18, 1951, entered into a collective-bargaining
agreement for a term of 2yearseffectiveJanuary 15, 1951, pertinent articles of which are as
follows: (General Counsel's Exhibit No. 2)
ARTICLE I
UNION JURISDICTION AND MEMBERSHIP
1. The Union shall be the sole representative and bargaining agent for all KRAMBO
employees in the Grocery Department and Produce Department of the stores operated
by the Employer at 908 West Mitchell Street, 324 West North Avenue and 2607 West Fond
du Lac Avenue, Milwaukee, Wisconsin, and all future stores of Milwaukee County, Wis-
consin, excepting managers and assistant managers. Employees working(15) fifteen hours
or less per week shall be excluded from the union shop provisions and shall not be
required to join the union as a condition of employment.
2. Any person to be covered by this agreement shall be hired only on a 30-day trial
basis, during which time he may be discharged by the Employer without recourse. Em-
ployees whose regular work week is over (15) fifteen hours per week must apply for
membership in the Union and shall work under the provisions of this agreement, and shall
thereafter maintain membership in good standing in the Union in order to maintain his
or her employment. _
Employees shall, after thirty (30) days of employment, become members of the Union,
and shall maintain membership in good standing as a condition of employment.
3. All new employees in the bargaining unit whose regular work week is over fifteen
(15) hours shall file application for membership in the Union and shall become members
of the Union within (30) thirty working days. The Union agrees to accept all such new
employees into membership upon the same terms and conditions as governed by the ad-
mission of others to such membership. All employees of the Employer covered by the
terms of this agreement shall be members of this Union and shall remain members thereof
in good standing for the duration of this agreement as a condition of employment.
e o a e
ARTICLE VI
VACATIONS
1. EACH FULL TIME EMPLOYEE after the first year of service shall be entitled to
one week 's vacation with pay. After the second year he shall be entitled to two week's
vacation with pay and each year thereafter he shall receive two week's vacation with
pay.
2. If a holiday occurs during an employee 's vacation , the employee shall be paid one
additional day's pay in addition to vacation pay.
3. All full part time help to be given proportionate vacation pay.
B. The representation case, No. 13-RC-2379
On November 29, 1951, the chargingUnion petitioned the National Labor Relations Board for
an election. A representation hearing was conducted on January 11-12, 1952, at which Respond-
ent Union urged its 2-year contract expiring January 15, 1953, as a bar to the proceeding. On
April 29, 1952, the Board issued its Decision and Direction of Election, in which a majority
(3 to 2) held that:
... It is clear from the terms of the contract that employees who had more than 30 days
of employment before the effective date of the contract were required, by the terms of
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the contract , to become members of the Intervenor forthwith ... that the contract contains
union -security provisions exceeding the limitations set forth in Section 8 (a) (3) of the
Act. The contract does not, therefore , constitute a bar to a present determination of
representatives . [Footnotes omitted.]
In a dissenting opinion a minority of the Board stated;
In our opinion the choice of language used by the parties in clauses "2" and "3" of the
contract reveals their intent to conform to the requirements of the Act. . . . The futurity
of this language, we believe, evidences the intent of the parties to accord old employees
a grace period of 30 days of "employment" after the contract has become effective
before requiring them to become members of the "Union." [Footnote omitted.]
The Board election was held on May 26 and 27 , 1952. The charging Union received a clear
majority of the votes cast. Thereafter, Respondent Union and Respondent Company filed ob-
jections to the conduct of the election and various motions to reconsider , to consolidate the
representation case with the complaint case herein , etc., all of which were denied. The Board
adopted the Regional Director 's report on objections , and on December 2, 1952, issued its
Supplemental Decision and Certification of Representatives in which Grocery Clerks Union,
Local No. 1469, Retail Clerks International Association. AFL, was certified as the exclusive
collective -bargaining representative of all employees of the Respondent Company in the ap-
propriate unit . Petition of the Respondents for withdrawal of certification and reconsideration
of decision was denied.
C. Alleged failure to accord Retail Grocery & Food Clerks
Union equal opportunity to meet with employees
The primary basis of this allegation of the complaint is Respondent Company 's failure to
respond to a letter addressed to it on May 22, 1952, which reads as follows:
We have been reliably informed that officers and other members or representatives of
Allied Independent Union have been permitted by the management of Krambo Food Stores.
Inc., to discuss with your employees the coming representation election to be conducted
by the National Labor Relations Board. These discussions have included persuasion, en-
couragement and inducement to such employees to vote in favor of Allied Independent
Union in such election . Such discussion , inducement and persuasion , and encouragement
has taken place not only on store premises , but also during working hours of employ-
ment, and have been directed to groups of employees as well as to individual employees.
We are therefore hereby requesting that you afford to representatives of Retail Clerks
International Association , A. F. of L., an equal opportunity to discuss the coming N.L.R.B.
election with your employees in the same manner and under the same circumstances. We
shall, of course, abide by any reasonable limitations you may impose , provided such
limitations do not create any greater restrictions upon our representatives than those
imposed upon the representatives of Allied Independent Union.
In view of the brief period of time remaining between now and the date of the N.L.R.B.
election, will you please give us your answer by early afternoon on Friday, so that proper
arrangements can be made for our representatives to receive the same rights , privileges,
and opportunities you have permitted representatives of Allied Independent Union. You
may communicate with the undersigned by telephone at Daly 8-6648, at which telephone
number the undersigned will be available all Friday afternoon.
Very truly yours,
RETAIL CLERKS INTERNATIONAL ASSO-
CIATION (GROCERY and FOOD CLERKS
LOCAL NO. 1469).
By
E. M. Stadelman
It is clear from the foregoing letter that the charging Union requested Respondent Company
to afford an equal opportunity with Respondent Union for representatives of Retail Clerks
International Association , AFL, to discuss the pending Board election with employees during
working hours and on company premises . Even though Respondent Company made no reply to
KRAMBO FOOD STORES. INCORPORATED 889
the letter , there is no substantial evidence in the record that Respondent Company knowingly
assisted either of the contending Unions in the election of May 26 and 27, 1952 . At most,
representatives of Respondent Union were permitted once a month to interview employees
concerning the payment of dues pursuant to the controversial collective-bargaining agreement,
and on December 10, 1951, to meet withthe night stockmen in the basement of Southgate Store
No. 20 to discuss a so-called grievance of those employees that had arisen concerning the
payment of dues to Respondent Union . There is no substantial evidence that Respondent Com-
pany cooperated with either Union or extended to either of them permission to discuss the
forthcoming representation election with employees on company premises and during working
hours . It is , therefore , recommended that the complaint be dismissed insofar as it alleges. that
Respondent Company neglected , failed, or refused to accord to the charging Union equal op-
portunities to meet with employees. 6
D. Illegality of the contract
Respondents vigorously contended before the Trial Examiner herein that the decision of the
Board in the representation case , No. 13-RC-2379, was erroneous in finding that their col-
lective-bargaining agreement effective January 15, 1951. was not a bar to the Board election
of May 26 , 27, 1952 . That issue is not before the Trial Examiner in the complaint case herein.
I concur in the result of the Board ' s decision for the additional reason that the contract con-
tains union-security provisions exceeding the limitations set forth in Section 8 (a) (3) of the
Act, as implemented by the procedural requirements of Section 9 (e) (1) of the Act prior to
the amendments of October 22, 1951 . It is clear that the union - security provisions of the
contract entered into between Respondent Company and Respondent Union were not authorized
by the Act prior to the amendments of October 22, 1951, and I find nothing in the amendments
to render enforcement of such provisions presently lawful , except in contracts executed after
the amendment . The general rule of law is that statutes are not retroactive unless clearly
indicated therein . The Respondents attempted to enforce and did enforce the union- security
provisions of their contract both before and after the amendments of October 22, 1951, and
continued such conduct despite the fact that the Board assumed jurisdicrion in the representa-
tion case , No. 13 - RC-2379 , on November 29, 1951, and conducted an election on May 26, 27.
1952, which finally resulted in certification of the charging Union as exclusive representative
of the employees of Respondent Company . Although Respondents presently contend that it was
the intent of the parties to provide in the contract that all employees , both old and new, be
allowed a period of 30 days after the effective date of the contract or date of initial employ-
ment , whichever is later, to become a member of Respondent Union as a condition of em-
ployment , it will hereinafter appear that they failed in the enforcement of the contract
to do so.
Pursuant to an election held on December 1, 1950 , the Wisconsin Employment Relations
Board on December 7, 1950, certified Respondent Union as the exclusive bargaining repre-
sentative of Respondent Company ' s employees in a unit consisting of all employees in the
Milwaukee, Wisconsin , stores , excluding employees in the meat departments and supervisors
(emphasis added), for the purposes of collective bargaining in respect to rates of pay, wages,
hours, and other conditions of employment. Thereafter , pursuant to a direction of referendum,
the Wisconsin Employment Relations Board on December 21, 1950, certified that the required
number of the eligible employees in the unit voted in favor of an " All Union Agreement," and
authorized the Respondents to enter into such an agreement. At the outset of negotiations
Respondent Union submitted to Respondent Company a typewritten list of demands or proposals,
indicating thereon in handwriting a union-shop agreement and checkoff of dues . Then the
negotiating committee composed of Roy Carney , Dan Dujanovich, Myron Rosenheimer, and
Joseph Malinowski in consultation with Arthur Sorenson , president of Allied Independent Unions
and Confederated Unions, of America, proposed and submitted to Respondent Company a draft
of the proposed contract. Article I of this proposed contract read, as follows : (Respondent
Company's Exhibit No. 4)
5In his brief, counsel for the General Counsel abandoned , as not proven, allegation 5 (a) (1)
of the complaint that Respondent Company by Gordon Roeske, store manager, threatened em-
ployees with curtailed working hours and discharge if they engaged in union activities on
behalf of the Retail Clerks Union ; and at the hearing the Trial Examiner recommended dis-
missal of allegation 5 (a) (2) that Respondent Company knowingly permitted petitions to be
circulated by Respondent Union on company premises during working hours.
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
UNION JURISDICTION & MEMBERSHIP
Section L The Union shall be the sole representative and bargaining agent of those classi-
fications of employees covered by this agreement in collective bargaining with the Em-
ployer All present employees who are members of the Union shall maintain their mem-
bership during tie period of this agreement by the regular payment of dues
Any person newly employed shall be employed only on a thirty (30) day basis during
which time he may be discharged by the Employer without further recourse . All employees
must make immediate application for membership to the Union and shall work under the
provisions of this agreement and shall thereafter maintain membership in good standing
in the Union in order to maintain his or her employment . All new employees who are not
members of the Union shall become members within thirty (30) days or be discharged
without further recourse.
Section IL Checkoff
Upon the receipt of written authorization from an employee the Employer will deduct
from his pay the dues payable by him to the Union . The Employer will make such deduc-
tions from the first pay of the employee after receipt of authorization , and monthly there-
after and transmit to the authorized representative of the Union the aggregate sum col-
lected , together with an itemized statement, showing the source thereof. The employer
further agrees to deduct from the employees pay all dues , initiation fees and assessments
and remit such deductions to the above.
Section III. All Union Provisions
All new employees in the bargaining unit shall , upon their engagement , file application
for membership in the Union, and shall become members of the Union within thirty (30)
days. The Union agrees to accept all such new employees into membership upon the same
terms and conditions as governed the admission of others to such membership . All em-
ployees of the Employer covered by the terms of this agreement shall be members of this
Union and shall remain members thereof in good standing for the duration of this agree-
ment as a condition of employment , all as provided in Section 111. 06 ( 1) (c), Wis., Stats.,
1949.
The Respondent Company suggested that employees working 15 hours or less a week be
excluded from the provisions of section I; and refused to agree to section II, providing for a
checkoff of dues . In the discussion, Morgan Selmer , negotiater for Respondent Company, also
suggested that the requirements for membership be clarified to provide that all employees be
given a period of 30 days in which to join the Respondent Union The union negotiating Com-
mittee discussed the desired clarification with the entire membership and proceeded to draw
a new draft of the proposed contract Certain members of the negotiating committee con-
sulted Edward M . Stadelman , business representative and corresponding financial secretary
of the charging Union, concerning provisions and form of the proposed contract Stadelman
called in his attorney , Saul Cooper , for consultation with members of the negotiating com-
mittee . Thereupon , a new draft of the proposed contract (General Counsel' s Exhibit No. 21)
was prepared in Stadelman ' s office . Article I of this second draft read , as follows:
UNION JURISDICTION AND MEMBERSHIP 6
1. The Union shall be the sole representative and bargaining agent of the departments
except the meat department employees , of the store operated by the Employer at 908 West
Mitchell Street, 324 West North Avenue and 2607 West Fond du Lac Avenue, Milwaukee,
Wisconsin, and all future stores of Milwaukee County , Wisconsin, excepting managers and
assistant managers . Employees working ( 15) fifteen hours or less per week shall be
excluded from the union shop provisions and shall not be required to join the union as a
condition of employment.
6Dan Dujanovich , a member of the negotiating committee , credibly testified that the com-
mittee had already examined various contracts throughout the country and formulated from
them the desired union- security provisions.
KRAMBO FOOD STORES, INCORPORATED 891
2 Any person to be covered by this agreement shall be hired only on a 30-day trial
basis, during which time he may be discharged by the Employer without recourse. Em-
ployees whose regular work week is over ( 15) fifteen hours per week must apply for
membership in the Union and shall work under the provisions of this agreement, and
shall thereafter maintain membership in good standing in the Union in order to maintain
his or her employment
,Employees shall , after thirty (30) days of employment , become members of the Union,
and shall maintain membership in good standing as a condition of employment . (Emphasis
added )
3 All new employees in the bargaining unit whose regular work week is over fifteen
(15) hours shall file application for membership in the Union, and shall become members
of the Union within 30 working days The Union agrees to accept all such new employees
into membership upoi the same terms and conditions as governed by the admission of
others to such membership . All employees of the Employer covered by the terms of this
agreement shall be members of this Union and shall remain members thereof in good
standing for the duration of this agreement as a condition of employment.
It may be seen by comparison that the union-security provisions set forth in General
Counsel ' s Exhibit No. 21 are identical with those of the final contract (General Counsel's
Exhibit No. 2) entered into between the Respondent Company and Respondent Union , supr,
except that the unit for collective bargaining is "the departments except the meat department
employees ," instead of "all Krambo employees in the Grocery Department and Produce
Department ," as described in the final contract.
The Respondents , therefore , contend that it is clear that the parties to the final contract, by
eliminating provisions of the first draft requiring immediate application for membership in
the Respondent Union, the general phrase " all as provided in Section 111.06 (1) (c), Wis.
Stats ." and adding to article I, section 2, the paragraphs " Employees shall, after thirty (30)
days of employment , become members of the Union , and shall maintain membership in good
standing as a condition of employment ," did not intend , as found by the Board , to require
that employees having more than 30 days of employment before the effective date of the con-
tract become members of the Respondent Union forthwith. The Respondents further contend
that the extrinsic evidence presented to the Trial Examiner herein conclusively establishes
that it was the intent of the parties to accord old employees a grace period of 30 days of
"employment" after the contract became effective before requiring them to become mem-
bers of the "Union," as held by the minority opinion of the Board.
Nevertheless , I find that the union - security provisions of the contract are illegal for failure
to comply with the election and certification requirements of Section 9 (e) of the Act, and
exceed the limitations set forth in Section 8 (a) (3) prior to the amendments of October 22,
1951 Asserting that the union-security provisions of the contract were legally entered into,
both Respondents have at all times since its inception admittedly required as a condition of
continued employment that all employees of the Respondent Company become members of and
maintain their membership in Respondent Union. Iftheunion-security provisions be illegal, as
found herein , subject to the time limitations stated in Section 10 (b) of the Act, such conduct
interfered with, restrained, and coerced said employees in the exercise of the rights guaran-
teed in Section 7 of the Act, and constituted discrimination in regard to hire or tenure of em-
ployment to encourage or discourage membership in a labor organization The threat of dis-
charge as a penalty for refusing to pay or becoming delinquent in the payment of dues to
Respondent Union was continuous , whether or not applied in actual practice.
E. Discriminatory discharges
On or about August 23 , 1951, Respondent Company opened a new store in the Milwaukee
area known as Southgate Store No. 20. No effort was manifested to require employees at that
store to become members of Respondent Union until the latter part of November 1951 when
the night foreman, George Wrecke, told the night stockers that they were required to join the
Union Shortly thereafter, membership application cards were distributed to employees. On
December 10, 1951, Raymond Boettcher, an employee since September 20, 1951, applied for
membership and tendered to Betty Hunt, vice chairman of the local unit, the initiation fee of
$ 3 and dues for the month of December in the sum of $1.50, total $4.50. A controversy ensued
as to whether Boettcher was required under the terms of the contract to pay dues dating back
to the date of his initial employment Betty Hunt refused to accept the $4 50 and called Arthur
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sorenson . president of Allied Independent Unions, over the telephone. Sorenson appeared at
the store shortly thereafter, and talked the matter over with Boettcher in the presence of
Betty Hunt and others . While the argument was in progress , the store manager asked them
to postpone the discussion until after the storeclosed . It was near closing time . About 9 p. in.
Sorenson conducted a so-called grievance meeting in the basement to discuss the subject of
dues . Representatives of Respondent Union, the store manager (Al Tanck), assistant store
manager (Roy Carney), and all of the night employees were present , including Raymond
Boettcher and Edward Gorski. Arthur Sorenson made a speech to the assembled employees
and told them that all employees of the Krambo Food Stores had paid dues from the first
mqnth of their employment, and that he expected all employees to continue that practice. He
told them he expected all employees to pay their dues according to the contract 30 days after
employment , and also expected them to do like other employees , that is , pay their first
month's dues voluntarily The store manager (Al Tanck) disagreed with Sorenson ' s interpreta-
tion of the contract Various persons present expressed their views as to the contract require-
ments. Betty Hunt stated that Respondent Union had a right to collect for the first 30 days of
employment because it was bargaining for the first 30 days. Sorenson said that the old mem-
bers of the Union felt that new members should pay dues from the time of their employment
because it was not fair to have a lot of free riders--that they should pay voluntarily because
the Union had done a lot for them. He agreed to accept an initial payment of $4.50 to cover
initiation fees and dues for 1 month, provided the employees would pay the back dues within
another week on the next payday at the store. Some of the employees accepted that proposition,
including Edward Gorski, but Raymond Boettcher insisted that he would not pay any back dues.
After the meeting on Monday night, December 10.1951, Edward Gorski reluctantly paid to a
representative of Respondent Union the sum of $ 4.50 on condition that he would talk the matter
over with his mother and report on the morrow whether he would pay the balance claimed as
back dues. When he reported for work on the following Thursday night, the assistant store
manager (Roy Carney) approached him and inquired whether he would pay the back dues . Gorski
refused to do so Thereupon, Carney removed Gorski's timecard from the rack, paid him his
wages, and discharged him. Emma Chase refunded the $4.50 which he had paid to Respondent
Union on the previous Monday night. Gorski called Sorenson over the telephone and inquired
why he had been discharged before his grace period of 1 week had expired . Sorenson said he
had been fired because he had definitely refused to pay up the back dues. Then Gorski left
the store and went home. About 1 week later, Gorski returned to the store and told the
assistant store manager (Roy Carney) that he had decided to pay up his back dues. Carney
conferred privately with Golda Reimer, a representative of Respondent Union, and then agreed
to reinstate Gorski in his job. Reimer required him to pay the back dues that night before
leaving the store , so he obtained an advance in his wages from the store and paid her the sum
of $ 10.50 to cover initiation fee and dues for 5 months. Undoubtedly, this amount included
union dues dating back to his initial employment, because he was first employed by the Re-
spondent Company in August 1951. Gorski now holds a membership and dues card (General
Counsel's Exhibit No. 10) showing that he also paid at later dates dues for the months of
January, February, March, April, May, June, July, and August, 1952.
As heretofore shown, Raymond Boettcher left the meeting on Monday night, December 10,
1951, still refusing to pay up back dues to Respondent Union. Before leaving he inquired of
the store manager (Al Tanck) whether he should thereafter return to work. Tanck told him
to return to work on his next scheduled workday (Thursday). When Boettcher reported for
work on Thursday, December 13, 1951, he found that his timecard had been removed from
the rack so that he could not check in Thereupon , he went to the assistant store manager
(Roy Carney) and asked for his timecard. Carney told him that he would have to become a
member of Respondent Union if he wanted to work. Boettcher expressed a willingness to join,
so Carney escorted Boettcher to see the union representative (Betty Hunt). Betty Hunt informed
Boettcher that he owed Respondent Union either $ 9 or $10, and that she would not accept
less than the full amount unless he would agree to pay the back dues within a definite period
of time. Boettcher would not agree to pay the amount demanded. Therefore, Carney paid
Boettcher his wages and discharged him. Undoubtedly, the amount demanded by Betty Hunt
included dues dating back to Boettcher ' s initial employment on September 20, 1951, because the
initiation fee of $ 3 plus dues at $ 1 . 50 per month for 4 months would have amounted to only $ 9.
F. Discrimination against Roger Biesel
Roger Biesel was a law student at Marquette University and part-time employee of Re-
spondent Company during the period from on or about August 28, 1950 , to on or about June
KRAMBO FOOD STORES. INCORPORATED 893
14, 1952 . During the summer months he was regularly employed by Respondent Company at
least 40 hours per week During the fall and winter months he worked regularly on a reduced
schedule , sometimes more and sometimes less than 15hours per week . At the end of his first
year of employment in August or September 1951, with the consent of Mr . Bodart, manager of
Fond du Lac Store No . 21, Biesel went on vacation for 1 week . When he returned to work,
Biesel applied to the new store manager , Gordon Roeske , for vacation pay, as provided in
the collective-bargaining agreement. Roeske deferred payment at that time because he was
not certain whether Biesel had qualified for such payment under the contract . ? Thereupon,
Biesel stopped paying dues to Respondent Union because it failed to support his claim for
vacation pay. In January 1952 he again approached Store Manager Roeske and insisted upon
payment of his vacation pay. He and Roeske discussed the matter on several occasions.
Thereafter Store Manager Roeske discussed Biesel 's claim with George Kinderman , a repre-
sentative of Respondent Union, and they agreed that Biesel 's claim should be paid . Kinderman
then notified Respondent Company to withhold payment of the vacation pay until Biesel paid
up his delinquent dues . Biesel was notified to that effect . Kinderman and Biesel had an argu-
ment about it. Finally Blesel paid Kinderman the sum of $ 13.50 in settlement of union dues
at the rate of $1 50 per month for September , October , November, and December , 1951, and
January, February , March, April , and May, 1952 . Kinderman then authorized Respondent
Company to release Biesel 's vacation pay. Respondent then on June 6, 1952, paid vacation
pay to Biesel in the sum of $ 26 50 less social security and withholding taxes . On June 13,
1952, Biesel voluntarily quit his job with Respondent Company and accepted employment else-
where.
The issue here is not whether Roger Biesel was entitled to vacation pay under the contract
as a part-time employee . The issue is whether the aforesaid admitted condu& of Respondent
Company and Respondent Union was an unfair labor practice.
G. Discrimination against John Mayer
John Mayer has been since August 18 , 1951, and presently is employed at the Fond du Lac
Store No. 21 of Respondent Company . He becamea member of Respondent Union in September
1951 , and paid his dues until the spring of 1952 after dissension arose among the members.
In April 1952, George Kinderman (union representative) came to the store and interviewed a
group of night employees in the basement . Kinderman presented a list of delinquent members,
and threatened to turn their names in to management for discharge unless they paid up their
dues to Respondent Union. Thereupon , Mayer paid dues in the sum of $ 1.50 for 1 month.
At the end of his first year of employment . in August or September 1952, Mayer did not take
a vacation but put in his claim for vacation pay as provided in the collective-bargaining agree-
ment . Store Manager Gordon Roeske refused to pay him until his union dues were paid up.
Roeske himself testified that Respondent Union had requested that Mayer 's vacation pay be
withheld because he was delinquent in payment of dues. Then Mayer went to see the union
steward ( Frances Anderson) about it, and she simply inquired whether he had paid up his
union dues . Then Mayer returned to the store manager, who advised him to pay the delinquent
dues . Thereupon , Mayer paid 2 months ' dues to Frances Anderson (union steward), and she
obtained the money for vacation pay from the office and paid It to Mayer in the sum of $ 22.60
on September 13, 1952.
H. Discrimination against Peter Voeller
Peter Weller, a medical student at Marquette University in Milwaukee, was initially em-
ployed by Respondent Company in September 1950 and is presently a night stocker at Fond
du Lac Store No. 21. From June 1951,to August 1951, Voeller worked for the International
Harvester Company on a full-time basis until laid off, and then returned to his employment
with Respondent Company on August 18, 1951. He became a member of Respondent Union in
January 1951 and maintained his membership by the payment of dues until after the Board
election in May 1952, except for periods when not employed by Respondent Company. The
company record (General Counsel's Exhibit No 16-B) shows that throughout his employment,
Voeller worked for Respondent on an average of more than 15 hours per week except for the
7See article VI of the contract, supra At that time Biesel was in good standing as a mem-
ber of Respondent Union and had regularly paid his dues.
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period from February to June 1952 ,8 and in some weeks during that period he worked more
than 15 hours. Prior to that period he averaged more than 30 hours per week. During the
period from July to September 1952 , he averaged more than 30 hours a week also. In the
month of August 1952 his average was more than 40 hours per week . In the months of Septem-
ber and October 1952 his average was less than 15 hours per week.
Near the end of his first year of employment with Respondent Company on or about August
14, 1952, Voeller requested Frances Anderson, payroll clerk for Respondent Company and
representative of Respondent Union, to compute his vacation pay under the collective-bar-
gaining agreement. On Friday, August 29, 1952, Frances Anderson informed Voeller that
Respondent Union had requested that his vacation pay be withheld until his dues were paid up.
Voeller then went to the store manager (Gordon Roeske), who confirmed what the union repre-
sentative had told him . The store manager refused to pay him until he was in good standing
as a member of Respondent Union. After considerable argument about the matter , Roeske
made statements to the effect that " if you want to argue from the point that there is no union,
then if there is no union I can start paying all you fellows fifty cents an hour and if there is
no union then the company policy is that there is no vacations ." Thereafter , during the weeks
successively ending on September 13, 20, and 27, and October 4, 11, and 18, 1952, Respondent
Company reduced Voeller's weekly working hours to 14-3/4hours, 6-1/2 hours, 11-1/2 hours,
12-3/4 hours , 19-3/4 hours , and 17-1/4 hours, respectively , although he was available and
desired to work an average of 35 hours a week comparable to the same period in September
and October 1951. Admittedly, at that season Respondent Company customarily readjusted the
working schedules of student employees to conform to the number of hours they would be
available for work , but in the case of Voeller it does not appear that his availability was
considered , and at the same time Respondent Company hired five additional night stockers at
Fond du Lac Store No 21, and increased the working hours of some others. Because of the
drastic reduction in his working hours, Voeller applied to the Industrial Commission of Wis-
consin for unemployment compensation , and received relief payments for the weeks ending
September 20, October 4, 11, and 18, 1952. Compensation was discontinued for the reason that
International Harvester Company recalled its employees who had been laid off in July 1952
In adjusting the unemployment compensation of Voeller , the Industrial Commission requested
Respondent Company to verify the number of hours Voeller was employed. The commission
informed the store manager that Voeller would draw unemployment compensation if he
earned there less than $18 per week. Thereupon, Gordon Roeske notified his night foreman
(Gordon Burdick) to provide Voeller with hours of work sufficient to provide minimum earn-
ings of $18 per week , and thereby preclude the payment to him of unemployment compensa-
tion by reason of limited employment status with Respondent Company. The store manager
also admits that vacation pay has never been paid to Voeller because of his refusal to pay
dues to Respondent Union
Concluding Findings
From the foregoing findings of fact based upon all of the evidence and the entire record in
the case, I find that since June 19, and July 28, 1951, respectively, Respondent Company and
Respondent Union have continually restrained and coerced employees of Respondent Company
(1) by maintaining and enforcing a collective - bargaining agreement exceeding the limitations
of and entered into without complying with the procedural requirements of Section 8 (a) (3) as
implemented by Section 9 (e) (1) of the Act, as then provided; (2) by requiring as a condition
of employment that said employees become members of and maintain their membership in
Respondent Union; and (3) by threatening said employees with discharge and other penalties
for refusing to pay or becoming delinquent in the payment of dues to Respondent Union.9
I further find that on or about December 13, 1951, Respondent Union caused Respondent
Company to discriminate , and Respondent Company did discriminate , against employees in
regard to their hire or tenure of employment to encourage or discourage membership in a
,During that period Voeller was also working for International Harvester Company, but was
laid off a second time in July 1952.
9Salant & Salant, Inc., 87 NLRB 215; Don Juan Co., Inc., 89 NLRB 1425; Shepherd Mfg. Co.,
Inc., 90 NLRB 2196; Squirt Distributing Co., 92 NLRB 1667; Worthington Pump & Machinery
Corp., 93 NLRB 527; Rock-Ola Mfg. Corporation, 93 NLRB 1196; Blue Ribbon Creamery, 94
NLRB 201; Charles A Krause Milling Co., 97 NLRB 536; Heekin Can Company, 97 NLRB 783;
Krambo Food Stores, Inc., 98 NLRB 1320; Hess, Goldsmith & Co., 101 NLRB 1009; Wood
Parts, Inc., 101 NLRB 445; Parker Brothers & Co., Inc., 101 NLRB 872.
KRAMBO FOOD STORES, INCORPORATED 895
labor organization (1) by laying off ordischargmgEdward Gorski until he became a member of
and paid dues to Respondent Union dating back to the date of his initial employment with Re-
spondent Company; and (2) by discharging Raymond Boettcher because he failed and refused
to become a member of and pay dues to Respondent Union dating back to the date of his initial
employment with Respondent Company. io
I find that in September 1951 Respondent Union caused Respondent Company to discriminate
and Respondent Company did discriminate, against Roger Biesel by withholding his vacation
pay until he paid back dues illegally required of him by Respondent-Union. This finding is
based both upon the illegality of the union-security provision of the contract, and the fact that
in any event the contract did not by its terms authorize Respondent Company to check off dues
from current wages , overtime pay, retroactive wage payments, bonuses, or any other funds in
which employees had a vested right. ii
I also find that on or about August 23, 1952, Respondent Union caused Respondent Company
to discriminate and Respondent Company did discriminate, against John Mayer by withholding
his vacation pay until he paid back dues illegally required of him by Respondent Union.
Likewise in the case of Peter Voeller, I find that Respondent Union on or about August 28,
1952, caused Respondent Company to discriminate and Respondent Company did discriminate,
against that employee by withholding, and has never paid, his vacation pay for the reason that
he refused to pay back dues illegally requiredof him by Respondent Union. I further find from
a preponderance of the evidence that Respondent Union caused Respondent Company to further
discriminate and Respondent Company did discriminate, in regard to the hire or tenure of
employment of Peter Voeller by reducing his hours of work on and after the second week in
September 1952 because he refused to pay dues to Respondent Union, despite the fact that he
was ready, able, and willing to work additional hours.
In the foregoing findings of unfair labor practices, I have looked beyond the language used
in the contract and considered the practice of the Respondents in administering its terms
according to their own interpretation. In practice, I find that they required not only member-
ship in Respondent Union as a condition of employment, but also required employees to pay
dues dating back to the effective date of the contract or to the date of initial employment,
whichever was later . In the enforcement of that policy the Respondents resorted to discharge,
threats of discharge, the withholding of vacation pay, and other penalties, all of which con-
stituted discrimination in regard to hire or tenure of employment or other terms or condi-
tions of employment.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent Company and Respondent Union set forth in section III, above,
occurring in connection with the operations of Respondent Company described in section I,
above, have a close, intimate , and substantial relation to trade, traffic , and commerce among
the several States tending to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondents have engaged in and are engaging in certain unfair labor
practices, I shall recommend that they cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
Having found that the union -security provisions of the contract not only exceed the limitations
and fall to comply with the procedural requirements of Sections 8 (a) (3) and 9 (e) (1) of the Act
prior to the amendments of October 22, 1951, but that in practice the Respondents, within the
time limitations of Section 10 (b) of the Act, attempted to require and did require employees
to pay dues to Respondent Union dating back to the effective date of the contract or to the date
of their initial employment, whichever was later, I shall in order to effectuate the policies
of the Act recommend that Respondents cease giving effect to the illegal security provisions
of their contract of January 15, 1951, or to any modification, extension, supplement, or re-
10 Cf. Ferro Stamping & Manufacturing Co., 93 NLRB 1459. Inasmuch as Respondent Union
demanded more than could be required under a lawful contract, employees were not obligated
to tender any amount. See Kaiser Aluminum & Chemical Corporation, 93 NLRB 1203.
iiChicago Steel Foundry Co., 49 NLRB 100; Reliable Newspaper Delivery Inc , 88 NLRB
659; Sullivan Dry Dock & Repairs Corp , 67 NLRB 627. The precedent set in Firestone Tire
& Rubber Co., 93 NLRB 981, for loss of seniority does not apply.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
newal thereof. In my opinion , however, other provisions of the contract not in conflict with
State or Federal laws are severable , and that rights of employees acquired thereunder are
not prejudiced by the illegal union-security provisions therein. tt
Having found that Respondent Union caused Respondent Company to illegally require, and
Respondent Company did illegally require its employees to become members of and maintain
membership in Respondent Union as a condition of continued employment , it will be recom-
mended that Respondents , jointly and severally , reimburse Edward Gorski , Roger Biesel.
John Mayer, Peter Voeller, and all other employees who involuntarily paid initiation fees and
dues to Respondent Union since July 28, 1951, for the full amounts so paid.
Having found that Respondent Union caused Respondent Company to discriminatorily dis-
charge, and Respondent Company did discriminatorily discharge , Edward Gorski and Raymond
Boettcher on or about December 13, 1951, and thereafter reinstated Gorski when he paid his
union dues , it will be recommended that Respondent Company offer to Raymond Boettcher
immediate and full reinstatement to his former or substantially equivalent position 13 without
prejudice to his seniority or other rights and privileges ; and that Respondents , jointly and
severally, make each of said employees whole for any loss of pay suffered by reason of the
discrimination by the payment of a sum of money equal to the amount he would have earned
as wages since the date of his discharge to the date when such reinstatement or offer of
reinstatement was or is made, less net earnings . 14 to be computed on a quarterly basis in
the manner set forth in F. W. Woolworth Company, 90 NLRB 289. Earnings in one particular
quarter shall have no effect upon the back -pay liability for any other such period.
Having found that Respondent Union caused Respondent Company to discriminatorily with-
hold and Respondent Company did withhold and is still withholding, vacation pay from Peter
Voeller, and also arbitrarily reduced his working hours, because he refused to maintain his
membership in Respondent Union, it will be recommended that Respondent Company imme-
diately offer employment to Peter Voeller for themimber of hours each week that he is avail-
able during working hours of Respondent Company in his present position as a night stocker
or equivalent position at Fond du Lac Store No . 21; and that Respondents . jointly and severally,
pay to him all vacation pay discriminatorily withheld; and also make him whole for any loss
of pay suffered by reason of the discriminatory reduction in his working hours beginning the
second week in September 1952 to the date when his normal working hours are restored, or
offered to be restored, by Respondent Company, less net earnings , ss to be computed on a
quarterly basis in the manner set forth in F. W. Woolworth Co., 90 NLRB 289. Earnings in
one particular quarter shall have no effect upon the back -pay liability for any other such
period.
It will also be recommended that Respondents upon request make available to the Board
all of their books and records necessary to facilitate the computation of initiation fees, union
dues, vacation pay, and back pay herein awarded to employees.
Upon the basis of the foregoing findings of fact and the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. Allied Independent Unions, CUA , and Retail Grocery & Food Clerks Union, Local 1469.
Retail Clerks International Association, AFL. are labor organizations within the meaning of
Section 2 (5) of the Act.
2. By maintaining and enforcing for a period beginning 6 months prior to the filing and
service of charges herein , the union-security provisions of a collective-bargaining agreement
exceeding the limitations of and without complying with the procedural requirements of Sec-
tion 8 (a) (3) as implemented by Section 9 (e) (1) of the Act (prior to amendments of October
22, 1951), requiring membership in Respondent Union as a condition of employment, and by
threatening employees with discharge and other penalties for failure to maintain membership
in Respondent Union, Respondent Company engaged in unfair labor practices within the mean-
ing Section 8 (a) (1) and (3), and Respondent Union engaged in unfair labor practices within the
meaning of Section 8 (b) (1) (A) and (2 ) of the Act.
>Y N. L. R . B. v. Rockaway News Supply Co., 345 U. S. 71.
U The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65
NLRB 827.
i4See Crossett Lumber Co., 8 NLRB 440.
15 See Crossett Lumber Co., 8 NLRB 440.
AEOLIAN AMERICAN CORPORATION 897
3. By causing Respondent Company to discharge Edward Gorski and Raymond Boettcher;
to withhold vacation pay from Roger Biesel,JohnMayer, and Peter Voeller; and to arbitrarily
reduce the working hours of Peter Voeller; because of their failure of refusal to maintain
membership in Respondent Union, the Respondent Union caused Respondent Company (an
employer) to discriminate in regard to hire or tenure of employment, or other terms or
conditions of employment, to encourage or discourage membership in a labor organization;
and Respondent Union thereby engaged in unfair labor practices within the meaning of Sec-
tion 8 (b) (1) (A) and (2) of the Act.
4. By discharging Edward Gorski and Raymond Boettcher, and arbitrarily reducing the
working hours of Peter Voeller, because of their failure of refusal to maintain membership
in Respondent Union, the Respondent Company engaged in unfair labor practices within the
meaning of Section 8 (a) (1) and (3) of the Act.
5. 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. ]
AEOLIAN AMERICAN CORPORATION and DISTRICT LODGE
NO. 6, INTERNATIONAL ASSOCIATION OF MACHINISTS,
AFL, Petitioner and INDEPENDENT UNION OF PIANO
WORKERS. Case No. 3-RC-1216. August 25, 1953
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Hymen Dish-
ner, hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby
affirmed. I
Pursuant to the provisions of Section 3 (b) of the Act, the
Board has delegated its powers in connection with this case
to a three-member panel. [Chairman Farmer and Members
Styles and Peterson.]
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the mean-
ing of the Act.
2. The labor organizations involved claim to represent
employees of the Employer.
3. No question affecting commerce exists concerning the
representation of employees of the Employer within the mean-
ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for
the following reasons:
The Employer and the Intervenor asserttheir currentagree-
ment, effective from December 1, 1952, to November 30, 1953,
as a bar to this proceeding. The Petitioner contends that the
contract is not a bar because it contains an invalid union-
security clause.
The contract contains the following:
'In view of our disposition of this case, we do not pass upon the hearing officer's refusal
to admit testimony that all employees were members of the Union at the time the current
contract was executed.
106 NLRB No. 141.