Abe Meltzer, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1954

108 N.L.R.B. 1506 (N.L.R.B. 1954)

1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election , the undersigned finds that the Employer discriminated In favor of the Intervenor in
the application of its no -solicitation rule and thereby materially interferred with the election.
Accordingly, the undersigned finds that an objection based upon Witwerd's sending Sute in the
backroom to talk to Intervenor 's representatives has merit.
1. With respect to incidents at store No . 9: Although Petitioner 's and Intervenor's repre-
sentatives were in store No. 9 talking to Don Reisenbeck about the election, there is no
evidence that the Employer knew they were there soliciting the employees . Thus, the under-
signed finds that the Employer did not discriminate in the application of its no-solicitation
rule and that an objection based thereon is without merit.
J. With respect to incidents at store No . 10: With respect to Meat Department Manager
Mitchell 's statement to Vivian Turner , that he felt sure that after the election the employees
of the Employer would make as much or more money than employees in other markets and
that they would get a good contract or the best contract , the undersigned finds it to be an
expression of a view or opinion privileged under Section 8 (c) of the Act , particularly where,
as here, the statement was made during a discussion about Turner's quitting her job. At
this time , Mitchell was attempting to persuade Turner from quitting her job. Accordingly, the
undersigned finds no merit to an objection based on Mitchell's statements to Turner.
With respect to the Intervenor 's and Petitioner 's representatives soliciting in store No. 10,
there is no evidence that the Employer was aware of the presence of either the Intervenor's
or Petitioner 's representatives being in the store on any occasion. Accordingly , the under-
signed finds that the Employer 's application of its no -solicitation rule in store No. 10 was
not discriminatory and that an objection based thereon is without merit.
It is the function of the Board to provide a forum in which an election can be conducted
under conditions as ideal as possible. Itis concluded that the Employer 's promises of benefits,
interrogation of employees concerning their union views and sympathies, and its disparate
application of its own no-solicitation ruleunder allthe circumstances involved herein rendered
it impossible for the Board to fulfill its functions in accordance with the strict standards
designed to assure that the participating employees have the opportunity to register their
free choice for or against a bargaining representative.
RECOMMENDATIONS
Upon all of the foregoing , the undersigned recommends that the results of the election of
January 8. 1953, be set aside and a new election ordered by the Board.
As provided in the order directing hearing on objections , within ten (10) days from the
issuance of this report, any party may file with the Board in Washington, D. C., an original
and 6 copies of exceptions thereto. Immediately upon the filing of such exceptions, the party
filing the same, shall serve a copy thereof upon each of the other parties, and shall file a copy
with the Regional Director, Ninth Region, National Labor Relations Board, Cincinnati 2, Ohio.
ABE MELTZER, INC.and MORRIS ZWEIG
FURRIERS JOINT COUNCIL OF NEW YORK AFFILIATED
WITH INTERNATIONAL FUR & LEATHER WORKERS UNION
OF THE UNITED STATES AND CANADA and MORRIS ZWEIG.
Cases Nos. 2-CA-2987 and 2-CB-920. June 28, 1954
DECISION AND ORDER
On October 15, 1953, Trial Examiner Arthur Leff issued his
Intermediate Report in the above-entitled proceeding, a copy
of which is attached hereto, finding that the Respondent
Company had not engaged in any unfair labor practices with-
in the meaning of Section 8 (a) (3) and 8 (a) (1) of the Act,
that the Respondent Union had not engaged in any unfair labor
108 NLRB No. 218.
ABE MELTZER, INC. 1507
practices within the meaning of Section 8 (b) (1) (A) and 8 (b)
(2) of the Act and recommending that the complaint herein
be dismissed in its entirety. Thereafter, the General Counsel
and the Charging Party filed exceptions to the Intermediate
Report and supporting briefs, and the Respondent Union filed
exceptions to certain of the Trial Examiner's fact findings and
a brief in support of the Trial Examiner's legal conclusions
resulting in dismissal of the complaint. The Charging Party and
the Respondent Union also requested oral argument. These
requests are hereby denied, as the record, including the
exceptions and briefs, adequately presents the issues and the
positions of the parties.
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions and briefs,
and the entire record in the case and finds merit in the
exceptions of the General Counsel and the Charging Party
insofar as they allege that the Respondent Union has independ-
ently violated Section 8 (b) (1) (A) of the Act.
1. The Trial Examiner assumed , without deciding, that
Zweig , the Charging Party, was discharged at the request of
the Union, and he concluded that such discharge did•not, as
a matter of law, constitute a violation of the Act because
Zweig had failed to comply with the overtime provisions of
the collective -bargaining contract here involved. The Examiner
therefore dismissed that portion of the complaint alleging
that Zweig had been discriminatorily discharged. We find it
unnecessary to pass upon the validity of the Trial Examiner's
legal basis for dismissing the complaint because we believe
that the portion of the complaint relating to Zweig 's employment
status should be dismissed for lack of proof of the factual
allegations of the complaint.
The record shows that officials of the Union discovered
Zweig working at a nonunion shop on February 23 (on which
day the Company' s shop was closed ), allegedly in violation
of the terms of the bargaining contract under which Zweig
worked for the Company. On the morning of February 24, 3
union officials accosted Zweig --under conditions described
fully in the Intermediate Report- -while the latter was proceeding
to his regular job at the Respondent Company's shop, and 1
of them, Gru, stated that the Company's plant would be struck
if Zweig attempted to work that day. Shortly thereafter, Gru
and a second official , Wasserman , went to the Company's shop
and instructed the union shop chairman, Kalisch, that they
did not want Zweig to work that day' and that, if Zweig appeared
i This union instruction also applied to employee Abravaya who was also accosted by the
union officials on February 24 for allegedly violating the Respondents ' bargaining contract
by working in the nonunion shop together with Zweig, but as to whom the complaint has not
alleged a discriminatory discharge.
1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at work , Kalisch was to communicate with the Union. Still
later Kalisch and Jasper , another employee also a union
official , were observed by employee Iaci going toward a door
leading only to the office of Abe Meltzer , the Respondent
Company's president ; Kalisch and Jasper did not reappear
until after about 5 minutes.
The record also discloses that about half an hour after
Kalisch and Jasper returned to their workbenches Zweig
entered the plant and spoke to President Meltzer . As the Trial
Examiner found , when Zweig asked whether he was discharged,
Meltzer replied that he "did not want to get mixed up in your
[Zweig ' s] politics ." Zweig then left the shop ; he returned to
the plant that evening , a regular paytime, to collect his wages.
Zweig spoke to President Meltzer again , asking whether he
could work the following day, and Meltzer replied that he had
not fired Zweig, repeating that he did not want to become in-
volved "in your politics ." The next day Zweig reported for work
without incident and was working for the Respondent Company
at the time of the hearing of this case.
Under all the circumstances of this case, particularly
Zweig's conversation with President Meltzer on the evening
of February 24 and his return to work on the following day,
we are not convinced that the Union requested the Company
to discharge Zweig or that Zweig was , in fact, discharged.
Accordingly , we shall dismiss those portions of the complaint
alleging that the Respondents violated the Act with respect to
Zweig's employment status.
2. The record shows and we find, as did the Trial Examiner
in part , that on February 24, when employees Zweig and
Abravaya sought to report for work at the Company's plant,
union officials blocked their ingress and physically attacked
Abravaya because the two employees had, on February 23,
worked overtime in another shop . In concluding that such con-
duct by the Union did not violate Section 8 (b) (1) (A), the Trial
Examiner relied upon the same legal theory , noted above, used
in his dismissal of the portions of the complaint relating to
Zweig ' s alleged discharge . We disagree with the Trial Exam-
iner's ultimate conclusion ; however , in so doing, we do not
pass upon the validity of his legal premise . For assuming
arguendo that the Union had a right, under its contract, to
invoke procedures prescribed therein to effectuate Zweig's
discharge for violating the agreement ' s overtime provision,
we nevertheless find, contrary to the Trial Examiner and for
the following reasons , that the Union's resort to violence was
unlawful.
We believe that the Union ' s action in requiring employee
compliance with the overtime provisions of the contract
reflected a union policy having mutual aid and protection as
its objective. The determination by Zweig and Abravaya to
work notwithstanding the Union's general " spread the work"
policy constituted a refusal on their part to assist the Union
ABE MELTZER, INC. 1509
in effectuating that policy . As noted above , because of their
refusal to conform to the union policy, the Union retaliated
against the two employees by using physical force to prevent
them from working for the Company . We do not, as our dis-
senting colleague contends , condone employee breaches of
contractual obligations . We find only that where , as here,
there is a conflict between union policy and the action of
individual employees refraining from promotion of that policy,
the statute does not permit resort to violence by a union to
enforce the policy . For, it is well settled that Section 8 (b) (1)
(A) outlaws , without qualification , all union violence against
employees which has the effect of interfering with their
statutory right to refrain from assisting labor organizations
or engaging in concerted activities . Accordingly , we find, con-
trary to the Trial Examiner , that the Union restrained and
coerced employees Zweig and Abravaya in violation of Section
8 (b) (1) (A) of the Act.
REMEDY
It having been found that the Respondent Union has engaged
in unfair labor practices affecting commerce within the meaning
of Section 2 (6) and (7) of the Act, we shall order the Union to
cease and desist therefrom and take certain affirmative action
in order to effectuate the policies of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board orders that the Respondent
Union , Furriers Joint Council of New York affiliated with
International Fur & Leather Workers Union of the United
States and Canada, New York, New York, and its officers,
representatives , agents, successors , and assigns , shall:
1. Cease and desist from:
Assaulting , threatening to assault , or otherwise physically
interfering with the employees of Abe Meltzer , Inc., in order
to require their compliance with the provisions of the collective-
bargaining agreement between the Respondent Union and Abe
Meltzer, Inc ., and in any like or related manner interfering
with the rights of employees , as guaranteed to them by Section
7 of the Act.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act.
(a) Post at its business office at New York, New York, copies
of the notice attached hereto and marked "Appendix .' Copies
2 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
1 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of said notice, to be furnished by the Regional Director for the
Second Region, shall, after being duly signed by an official
representative of the Respondent Union, be posted by the Re-
spondent Union immediately upon receipt thereof and be
maintained by it for a period of sixty (60) consecutive days
thereafter in conspicuous places, including all places where
notices to members are customarily posted. Reasonable
steps shall be taken by said Respondent Union to insure that
said notices are not altered, defaced, or covered by any other
material.
(b) Furnish to the Regional Director for the Second Region
signed copies of the notice, attached hereto as an appendix,
for posting, the Company willing, on the bulletin board of
Abe Meltzer, Inc., where notices to employees are customarily
posted. The notices shall be posted on the Company's bulletin
board and be maintained thereon for a period of sixty (60)
consecutive days thereafter. Copies of said notice, to be
furnished by the Regional Director for the Second Region , shall,
after being duly signed by an official representative of the
Respondent Union as provided in paragraph 2 (a) of this Order,
be forthwith returned to the Regional Director for such posting.
(c) Notify the Regional Director for the Second Region, in
writing , within ten (10) days from the date of this Order as to
the steps it has taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that the complaint, in-
sofar as it alleges that Abe Meltzer, Inc., and Furriers Joint
Council of New York affiliated with International Fur & Leather
Workers Union of United States and Canada engaged in unfair
labor practices with respect to a discharge of employee Zweig,
be, and it hereby is, dismissed.
Member Peterson, concurring and dissenting in part:
I concur in the dismissal of the complaint insofar as it
alleges the discriminatory discharge of Zweig. However, I
am unable to agree with the majority's further finding that
the Union, by the conduct of its officials toward employees
Zweig and Abravaya for refusing to comply with their con-
tractual obligations, violated Section 8 (b) (1) (A). This section
was not intended to confer upon the Board general police
power covering any and all violence by a union, but rather was
designed to outlaw only such restraint and coercion as is
directed against the exercise by employees "of the rights
guaranteed in Section 7." Thus, to bring the Union's conduct
here within the ambit of Section 8 (b) (1) (A), the majority,
it seems to me, must necessarily find that employees have
a protected right under Section 7 to violate the provisions of
a collective-bargaining agreement which is assumed to be
valid by my colleagues. I emphatically reject that view. Not
only does the language of Section 7 fail to recognize the right
of employees to breach their contract, but in my opinion such
a concept is inconsistent with settled doctrines and is in-
compatible with the basic policies of the Act.
ABE MELTZER, INC. 151 1
The majority would safeguard the conduct of Zweig and
Abravaya, which breached their contract, by equating such
action to the statutory right to refrain from assisting a labor
organization . In my opinion , this represents a fundamental
misapplication of that statutory right. The whole scheme of
the Act makes it clear that in granting employees the right
to refrain from the activities set forth in Section 7, the
Congress did not intend such right to encompass a breach
of a legal provision i{i a collective -bargaining agreement. The
fundamental design of the Act is to promote the ultimate
consummation of collective -bargaining agreements as a means
of preventing industrial unrest .' That the Congress intended
such agreements to be inviolate is inherent in Section 8 (d) of
the Act and in the recognized principle that employees who
violate the terms of collective -bargaining contracts are
vulnerable to discharge by their employers. Clearly therefore,
Section 8 (b) (1) (A) cannot be construed as affording any
measure of protection to employees against reprisals related
to their wrongful breaches of collective -bargaining agreements.
I, no less strongly than the majority, condemn the Union's
use of violence in this case, but Ibelieve that the circumstances
here involved require that Zweig and Abravaya resort to courts
of civil and/or criminal jurisdiction to obtain any redress
against the Union to which they may be entitled.
Member Murdock took no part in the consideration of the
above Decision and Order.
9As the Supreme Court stated in H. J. Heinz Company v. N. L. R. B., 311 U. S. 514,
524, 525, "Contrasted with the unilateral statement by the employer of his labor policy, the
signed agreement has been regarded as the effective instrument of stabilizing labor relations
and preventing, through collective bargaining, strikes and industrial strife..... Congress,
in thus incorporating in the new legislation the collective bargaining requirement of the
earlier statutes included as a part of it, the signed agreement long recognized ... as the
final step in the bargaining process."
APPENDIX
NOTICE TO ALL MEMBERS OF FURRIERS JOINT COUNCIL
OF NEW YORK AFFILIATED WITH INTERNATIONAL FUR &
LEATHER WORKERS UNION OF UNITED STATES AND
CANADA AND TO ALL EMPLOYEES OF ABE MELTZER, INC.
Pursuant to a Decision and Order of the National Labor
Relations Board , andrn order to effectuate the policies of the
National Labor Relations Act, we hereby give notice that:
WE, all the undersigned , WILL NOT assault, threaten
to assault, or otherwise physically interfere with the
employees of Abe Meltzer , Inc., in order to require
their compliance with the provisions of the collective-
bargaining agreement between Furriers Joint Council of
1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New York affiliated with International Fur & Leather
Workers Union of United States and Canada and Abe
Meltzer, Inc., or in any other like or related manner
interfere with the rights of employees , as guaranteed
to them by Section 7 of the Act.
FURRIERS JOINT COUNCIL OF NEW YORK
AFFILIATED WITH INTERNATIONAL FUR &
LEATHER WORKERS UNION OF UNITED
STATES AND CANADA,
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.
Intermediate Report
STATEMENT OF THE CASE
Charges having been filed by Morris Zweig against the Respondent Company and the Re-
spondent Union above-named in Case No. 2-CA-2987 and Case No. 2-CB-920, respectively,
and the two cases having been duly consolidated, the General Counsel issued a complaint
alleging that the Respondents had engaged in unfair labor practices affecting commerce within
the meaning of the National Labor Relations Act, 61 Stat. 136, herein called the Act. More
specifically , the complaint alleged that the Respondent Company violated Section 8 (a) (1)
and (3) of the Act, by discharging Morris Zweig on February 24, 1953, and failing to reinstate
him until the following day; that the Respondent Union violated Section 8 (b) (1) (A) and (2),
by attempting to cause and causing the Respondent Company to discharge Zweig, and that the
Respondent Union additionally violated Section 8 (b) (1) (A) on the same day, by blocking ingress
to the Respondent Company's plant and by assaultingand threatening to assault the Company's
employees . The Respondents filed answers denying generally the material allegations of the
complaint imputing to them the commission of unfair labor practices Pursuant to notice, a
hearing was held between August 28 and September 2, 1953, at New York City, before the under-
signed , Arthur Leff, the Trial Examiner duly designated by the Chief Trial Examiner. The
General Counsel and the Respondent Union were represented at the hearing by counsel, and
the Respondent Company, by its president . Fullopportunity was afforded all parties to examine
and cross -examine witnesses , to present oral argument at the close of the hearing , and there-
after to file briefs as well as proposed findings of fact and conclusions of law
Upon the entire record in the case and from my observation of the witnesses, I make the
following;
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Abe Meltzer, Inc., a New York corporation, with its principal office and place of business
at 333 Seventh Avenue, New York City, is engaged in the manufacture, sale, and distribution
of fur garments and related products. During 1952, the Respondent Company manufactured
at its New York City plant products valued in excess of $250,000, of which approximately
33 percent was transported from its New York City plant in interstate commerce to States
of the United States other than the State of New York. It is conceded by all parties that the
Respondent Company is engaged in commerce within the meaning of the Act.
ABE MELTZER, INC. 1 513
II. THE LABOR ORGANIZATION INVOLVED
Furriers Joint Council of New York affiliated with international Fur and Leather Workers
Union of the United States and Canada is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events
Morris Zweig, the Charging Party, is by his own account a person of some fame among
employees in the New York City fur industry. For many years--both before and after his
expulsion- -he has been a vigorous and vocal opponent of the Respondent Union's leadership.
Despite his active opposition to the Union's leadership, Zweig was permitted to remain a union
member in good standing from the time of his admission in 1946 until 1952. When, on January
23, 1952, he was finally expelled, it was not because of his antagonistic position to the Union's
leadership, but because he had refused to pay an assessment levied against all union members
of a half-day's pay to be used for an unemployment fund.' The Union's letter notifying Zweig
of his expulsion made clear that the action was not intended to affect his status as an employee.
It stated:
You are further advised that this action while depriving you of all rights as a union member
within the union, is not intended to affect your rights or status as a worker in the industry.
The Union will, to the best of its ability, protect your rights to the benefits of the collective
bargaining agreements and you may feel free to apply to the Union for the vindication
of those rights should they be impaired.
At the time of his expulsion, Zweig was employed as a machine operator by the Respondent
Company. The Company is a member of Associated Fur Coat and Trimmers Manufacturers,
Inc., herein called the Association, an employer association which for many years has had
collective-bargaining relations with the Union in an associationwide unit. Zweig's expulsion
did not affect his position with the Company. The record reflects that he continued thereafter
to receive his fair share of work. And there is testimony that the Union continued to represent
him impartially in disputes with his employer. Except for the incident to be detailed below--
flowing from Zweig's acceptance of employment by another employer on Washington's Birthday
of this year--Zweig has admittedly been allowed to work on for the Company without hindrance
from the Union until the present time.
The Union's contract with the Association, as well as its contracts with individual em-
ployers outside the Association, provides for a 7-hour day from 8:30 a in. to 4:30 p. m. and
a 5-day, 35-hour, workweek, and in addition imposes specific restrictions against work on
certain legal holidays, including Washington's Birthday. The Association contract provides
that no overtime work shall be permitted except:
In cases of emergency, overtime may be permitted, but only by mutual consent of the
Union and the Association, and no such overtime shall be permitted unless requested
by the employer through the Association and written permission issued by the Union
therefor.
Among the " just causes for discharge" spelled out in the contract are the following:
(f) Working in another shop when employer needs worker's services.
(g) Working overtime in another shop after 4:30 p. in.
Uncontradicted testimony reflects that clause (1),above,hasbeen interpreted by the contracting
parties to mean that an employee is allowed to work in a shop other than that of his regular
employer only during periods when no work is available in his place of regular employment.
'At the union meeting at which the unemployment tax resolution was considered, Zweig
had opposed the resolution, urging that the tax should be for double the amount but should
provide for fixed controls upon the method of distribution. After the assessment was levied,
Zweig refused to pay it, asserting that the money would be used not for the purposes intended
but to strengthen the administration in power.
1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The prohibition in (g), above , against working overtime in another shop after 4.30 p. in..
has been construed to refer not only to the hours after 4:30 p. in. on a regular workday, but to
Saturdays , Sundays, and holidays as well- - in short to any time over and beyond the regular
working time fixed by the contract . The words "another shop" have been construed to apply
to any shop in the fur industry other than that of the regular employer , whether or not
organized by the Union.
At the hearing , the General Counsel sought to establish that the restriction against overtime
work (including work on weekends and holidays) was basically a union rule or regulation
governing the conduct of its members . With that position the Union took issue, contending that
the restrictions were entirely contractual in character . According to the Union's witnesses
whose testimony in that respect , supported as it is by the Union 's bylaws in evidence, is
credited, the Union has no formal rule or regulation specifically covering that subject. The
only bylaw regulation that can be said to touch on it is a general provision makin,; it a punish-
able offense for a union member to violate the standards as to wages, hours, and working
conditions established by the Union. It is undoubtedly true that by formalization through the
collective-bargaining process , the contractual restriction on overtime now represents a union
established working standard . But the fact that the Union 's internal membership regulations
permit the Union to expel, suspend , or fine a member who violates that working standard
does not establish the root of thestandardto lie in the Union 's regulations governing member-
ship, as the General Counsel urges, rather than in the contractual requirements fixing the
standard , as the Respondent . I think correctly , insists.
As for the purpose of the overtime restrictions, the General Counsel makes no claim
that they were designed as a disguise to permit union employees to obtain more favorable
treatment than nonunion employees working in contract shops , nor does the record support
any such finding . According to the Union ' s witnesses whose uncontradicted testimony in that
regard appears to me reasonable , probable, and credible , the overtime restrictions were
desired by the Union as part of a program designed to spread available work and thus reduce
unemployment in the fur industry where work is seasonal and periods of substantial un-
employment are unfortunately common . The same witnesses further testified that the overtime
restrictions were also desired by contracting employers , who considered such restrictions
to be to their benefit because ithelped reduce employee fatigue, and , more important , because
it tended to prevent unfair competition from shops which after hours or on weekends or holi-
days might otherwise induce employees regularly employed at other shops to supplement
their regular income by working for them on a piecework basis or at rates or under condi-
tions that were lower than prevailing standards. While I have no reason to doubt that these
considerations contributed to the employers ' acquiescence , I nevertheless believe- - largely
on the basis of the Union's retention of the right to control overtime work through its reserved
power to grant or decline permits --that the Union's purpose to spread work was the primary
reason for the overtime restrictions , and that the Union's was the greater interest in their
enforcement.
In February 1953 , the Union had a particular reason to enforce strictly the prohibitions
against overtime work . February is normally a slow season in the industry , but in 1953,
it followed a slow " busy" season , with work subnormally at a low ebb and with about 90
percent of the regular workers in the industry unemployed.
Employees in contract shops desiring to work overtime or on holidays are expected to
apply to the Union for written permits . Arrangements for the issuance of such permits are
usually made through the Union's shop chairman , though application , particularly where work
is to be done in another shop , may also be made by an individual employee. While Zweig
was a member of the Union , he invariably applied for a written permit before working
overtime. After his expulsion, however, Zweig considered himself released from any obligation
to seek the Union' s permission for overtime work. On a number of occasions he worked on
Saturdays , Sundays, and holidays for employers other than his regular employer without
obtaining permits from the Union. There is nothing in the record, however, to indicate that
the Union ever knowingly acquiesced in Zweig ' s conduct . The General Counsel made no claim,
and offered no evidence to show, that the Union had any policy to refuse permits to nonmembers
or otherwise to treat nonmember applicants on any basis different from that of union members.
Washington ' s Birthday in 1953 was celebrated on February 23. Zweig, Joseph Abravaya,
a union member , who like Zweig was then regularly employed by the Respondent Company,
and a third employee , whose identity the record does not disclose , accepted employment for
that day at the shop of another employer , Original Custom Furs , Inc. They did so without
ABE MELTZER, INC. 1515
obtaining holiday work permits. Original Custom Furs, Inc., had no regular employees of its
own and was not a party to a collective-bargaining agreement with the Union.2
It is the Union's practice to police the fur district on nonworkdays to check for possible
violations of contract work restrictions. On the morning of February 23, in the course of such
activity, a union committee of two, headed by Union Organizer William Wasserman, entered
the shop of Original Custom Furs, Inc. There they found Zweig, Abravaya, and the third
unidentified employee at work. Wasserman told the employees that they had no right to be
working, and demanded that they leave the shop at once and go to the Union's office. Zweig
refused to leave, stating that he was not a union member and did not consider himself bound
by union regulations prohibiting holiday work. Abravaya and the other employee followed
Zweig's lead, and although Abravaya at least was a union member, they also denied union
membership and declined to leave. Wasserman then left and returned to the union office where
he filed a complaint that Original Custom Furs, Inc., was open on Washington's Birthday and
had three workers. Zweig continued working the balance of the day. Abravaya, nervous
because, as he testified, he knew he was not permitted to work on a holiday, left the shop
shortly thereafter.
On the following morning, February 24, at about 8:20 a. in. Zweig, accompanied by Alfred
laci, a fellow employee at the Respondent Company's shop, arrived at the entrance of 333
Seventh Avenue, the loft building in which the Company's shop is housed. That building, the
largest in the fur district, is a point at which a large number of workers in the industry,
particularly the unemployed, normally congregate . As usual , there were many fur workers
gathered outside the building that morning. Also present were Wasserman, Izzy Gru, like
Wasserman a union organizer , and Herbert Kurzer , one of the Union's business agents.
Just as Zweig and Iaci reached the entrance door , Gru, then several feet to the side,
called out to Zweig to stop as he wished to speak to him. When Zweig complied, Gru placed
himself in front of Zweig with his back to the door . Gru reminded Zweig that on the day
before when Wasserman had caught him working , Zweig had refused to come down to the
Union , and asked him whether he would do so now. Zweig replied that he was not a union
member , that he had no business with the Union , and had no intention of complying with Gru's
request. Gru then told Zweig that he would not be allowed upstairs to work . Zweig asked how
Gru proposed to stop him , inquired tauntingly whether Gru had a lynching party with him,
and commented that the only way Gru could prevent him from working was through use of
force and violence. Gru made no comment to Zweig's reference to force and violence , except
to tell Zweig to stop agitating , but did say that if Zweig attempted to go to work he would
stop the Respondent Company's shop. He would show Zweig , he added, that Zweig was not
big enough to work on a holiday without a permit . Gru then went into an abusive discourse
about how bad conditions then were in the industry , how Zweig by working on a holiday was
taking bread from unemployed workers, and how Zweig was the same "loudmouth" who had
made a fuss about the unemployment tax. Through all this Zweig did not remain silent. He
answered abuse with abuse . He defended his position by stating that since the Union had
chosen to expel him from membership he no longer considered himself bound by its work
regulations , that he would not request work permits from the Union; that as long as the Union
granted permits to anyone he would take it for granted that he, too, had a right to work;
and if the Union did not think that fair it could reinstate him and then he would abide by its
work regulations . Gru and Zweig continued to argue along roughly these lines for about 5
minutes, both obviously debating for the benefit of the crowd that had gathered about them.
They did not remain in any fixed position while the argument continued . It had begun with
Gru in a position between Zweig and the entrance door . As it continued the participants
drifted away from the building entrance across the sidewalk . It wound up near the curb
with Zweig nearest the building . At no time was Zweig so much as touched by any of the union
representatives, nor was any express threat of assault or violence directed against him.
While Zweig and Gru were arguing , Wasserman joined in to call Zweig a "lousy scab" and
Zweig called Wasserman a "Commie stooge ." Kurzer though present said nothing . After 10
2 At the hearing, the Union originally took the position that Original Custom Furs, Inc.,
was bound by a collective-bargaining agreement with the Union entered into by joy-Lon Furs,
a partnership in which the principals of Original had been interested. However, following the
introduction of proof showing that Joy-Lon had gone into bankruptcy and that Original was
an independently established corporation , the Union in effect abandoned its original position
and agreed that Original could not be found bound by the Joy- Lon contract.
1 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
minutes, there was a sudden commotion over to a side next to building. The crowd quickly
shifted in that direction to see what was going on. Almost immediately Gru also left Zweig
to head for the corranotion . Wasserman and Kurzer were already there. It was now about
8:25 a . in., and Zweig ' s path to the building entrance was entirely clear.'
The commotion that diverted the crowd involved Abravaya. Abravaya reached the building
on his way to work at about 8:25 a. in. He was observed by Wasserman as he was approaching
the entrance to the building. Callingout "There is another one who worked that day," Wasser-
man moved toward Abravaya and grabbed him by his coat lapels. Extremely frightened and
fearing violence , Abravaya pushed Wasserman away from him with great force. At once
Abravaya felt himself bodily lifted and pushed toward the building wall, he does not know by
whom but believes it was the crowd. He found himself pinned against a window pane with
Wasserman in front of him and Kurzer's arm about him. At that point Gru left Zweig and
walked over. Gru, demanding of Abravaya whether he was a "tough guy," asked what had
happened. Abravaya, who by now had been released by Kurzer, said he did not know what was
happening , all he knew was that Wasserman had grabbed him and that he had then been
thrown against the wall. Wasserman accused Abravaya of having worked the day before on
a holiday. Abravaya denied the accusation. Gru then told Abravaya he wanted him to report
to the Union that morning to discuss the complaint that he had worked for Original Custom
Furs, Inc., the day before. Abravaya agreed to do so.4
Although free to do so, Zweig refrained from entering the building while all this was going
on. Instead, he joined the group about Abravaya and for a short time resumed his argument
with Gru at the point where it had been left off. Before long, the gathering broke up. Gru,
Wasserman, and Kurzer had a short discussion among themselves, and then, at about 8.40
a. in., Gru and Wasserman entered the building, while Kurzer waited for them outside.
Zweig and Abravaya made no effort to go up to their shop.5 They remained outside, discussing
the situation generally , and particularly A problem that was bothering Abravaya , whether he
should confess to the Union that he had worked on the holiday or whether he should brazen
3 Zweig and laci testified for the General Counsel, and Wasserman, Kurzer, and Gru for the
Respondent Union, with regard to the events just reported. In general outline, the versions of
Zweig and Iaci corroborate each other, though there is a conflict between them as to detail,
some of it important. There is a very substantial variance, however, between the versions of
the two just mentioned and the account of the Respondent's witnesses. That of the Respondent's
witnesses is roughly as follows: As Wasserman was passing by the building, Zweig yelled
out at him that he was the "Commie stooge who had tried to stop him from working the
preceding day. Wasserman, angered, replied by calling Zweig a name, and an argument
ensued between the two causing a crowd to collect. Gru and Kurzer, who had previously met
by chance, not by design, and were then passing that point on their way to the union office,
observed the crowd with Zweig and Wasserman in the center, and stopped to see what was
happening. Zweig, upon seeing them, sought to draw them into the argument by calling them
"Commie stooges." Apart from mentioning to Zweig that he had no business working on
a holiday, Kurzer and Gru did not participate in the argument, but directed their efforts
toward calming an angry crowd which they feared might get out of hand and be provoked by
Zweig into violence against him. The Respondent's witnesses denied that anything was said
to Zweig about going to the Union or about not going to work.
Of all the witnesses, I thought laci the most objective and credible. The testimony of the
Respondent's witnesses impressed me generally as contrived, and I do not credit them.
Zweig at times showed a tendency to dramatize his own position and to conform his testimony
to rhyme with his theory of the case. I did not think his testimony entirely reliable. The
findings of fact made above have been based in the main upon Iaci's credited testimony.
Zweig's testimony has been relied upon only to the extent that it is consistent with laci's
account.
4In addition to Abravaya, the five witnesses named in the preceding footnote testified
concerning the Abravaya incident. There is not much conflict among them as to what occurred.
Abravaya, though at times admittedly vague and confused in his memory, appeared to me
anxious to tell the truth as he remembered it, and no more. With regard to such details
as are in conflict, I credit his (Abravaya's) testimony and that of laci over the testimony of
the others
5 laci had gone up to work at about 8:30 a. m.
ABE MELTZER, INC. 1 517
it out and continue to deny that he had done so. Zweig's advice to Abravaya was to hold to his
denial.6
While Zweig and Abravaya were having their discussion, Abraham Meltzer, the Respondent
Company's president came by. Meltzer asked them why they were not going up to work. They
told him they had had some trouble with the Union Meltzer said nothing, but proceeded into
the building
Shortly thereafter, Wasserman and Gru came out, joined Kurzer, and with him left the
vicinity T Zweig and Abravaya remained outside a short while longer, possibly paused for a
cup of coffee, and then went into the building and up the elevator to the shop of their employer.
In the meantime, Gru and Wasserman, while they were in the building, had paid a visit
to the Respondent Company's shop. That fact is undisputed, although there is a conflict
as to what occurred while they were there. According to testimony of Alfred laci and Richard
Rutter, employees of the Company and members of the Union, Gru and Wasserman came into
the shop and asked for Abe Meltzer. When told that Meltzer had not yet arrived, Gru, directing
his remarks primarily to Sam Kalisch, the shop chairman, but in a voice loud enough for
other employees to hear, stated that Zweig and Abravaya had been caught working in a shop
on Washington's Birthday and that he did not want either of them to be allowed to work if they
came in. Gru further told KalischthatifZweig and Abravaya appeared for work, he was to stop
what he was doing and communicate immediately with the Union, and that the Union would then
"straighten it out." The witnesses for the Respondent Union took issue with that testimony.
According to Wasserman and Gru, their purpose in visiting the Respondent Company's shop
that morning was simply to ascertain whether the third unidentified employee who had worked
with Zweig and Abravaya at Original Custom Furs was regularly employed by the Respondent
Company. Gru admitted that while in the shop he had a conversation with Kalisch, but testified
that he simply warned Kalisch that Zweig was seeking to provoke an incident that day and
instructed him not to allow the shop's employees to be drawn into any commotion in the shop
as a result of Zweig's provocative conduct. Sam Kalisch, called by the Union, supported
Gru's testimony in that respect. However, the version of Gru and Kalisch impressed me as
contrived and improbable. On the other hand, not only did laci and Rutter impress me as
truthful witnesses, but I think it unlikely, particularly in view of the fact that both are members
of the Union, that they would have fabricated testimony of this kind merely to aid Zweig in
this proceeding in which they are personally disinterested. I therefore credit the testimony
given by Iaci and Rutter, and reject the inconsistent testimony of the Respondent's witnesses.
Iaci further testified that after Gru and Wasserman left the shop and shortly following
Meltzer's arrival, he observed Kalisch and employee Jack jasper, who is the head of one
of the Union's affiliated locals, arise from their workbenches and go off in the direction of
the door leading to a private showroom used by Meltzer for his office. laci did not actually
see them enter Meltzer's office, for his vision of the door was blocked by physical obstruc-
tions, but he lost sight of them only after they had taken a turn that could lead only to that
office and nowhere else. laci further testified that Kalisch and jasper were gone about 5
minutes before they returned together to their workbenches. Meltzer while testifying denied
that he had any conversation that morning with Kalisch, Jack Jasper, or anyone else from
the Union about Zweig or Abravaya. Kalisch was not asked specifically to explain his move-
ments that morning as referred to by Iaci, but demed generally that he had any conversation
with Meltzer that day. Jasper was not called as a witness.
When Zweig and Abravayacameuptotheshop that morning, they did not go to the workroom,
as is the usual custom of the Company's employees even when they are late in their arrival.
Instead, at the suggestion of Zweig, they entered the Company's showroom through a separate
door, and asked to see Meltzer When Meltzer came in, Abravaya told Meltzer that the Union
would not let him go to work because he had been accused, wrongly he said, of working on
6I do not regard as credible Zweig's assertion that he delayed entering the building because
he feared force and violence if he did so.
7According to Zweig, Gru, as he was leaving, again warned Zweig not to go to work, stating
this time that he had instructed the shop chairman to stop the shop if Zweig sat down to work.
Wasserman,' Gru, and Kurzer denied that they had any further conversation with Zweig at this
time. Abravaya's testimony on that point, while vacillating, appears on the whole to support
the testimony of the Respondent's witnesses. Zweig's contrary testimony in this respect is
not credited.
1 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a holiday. Zweig backed Abravaya in his assertion that he had not worked the day before.
Zweig admitted to Meltzer that hehadworked, but pointed out that he was outside the jurisdic-
tion of the Union. Abravaya, who admittedly did not intend to work that morning , planning to
go to the Union instead, did not ask Meltzer specifically if it was all right for him to go to work.
Zweig did. Meltzer did not give Zweig a clear yes or no answer. He told Zweig that if he
started to work then, there would be a commotion in the shop, adding that he "did not want
to get mixed up in your politics." With those words, Meltzer walked out of tie showroom,
and nothing more was said. Zweig interpreted Meltzer's equivocal comment as a refusal
to allow him to remain as an employee, and left the building with Abravaya.8
After leaving Meltzer, Zweig called at the Association's office, spoke to its manager
about the occurrences that morning, and was told the Association would contact Meltzer.
That same morning a representative of the Association communicated with Meltzer and advised
him not to interfere in the controversy between the Union and Zweig and to reinstate Zweig, 9
Later that morning Zweig telephoned Meltzer to ask whether he had received a call from any-
body and whether the situation had changed. Meltzer replied that he had received no call
and that there had been no change. Zweig then took his complaint to the State Labor Relations
Board, and was referred by that agency to the National Board. At about 1 p. in. of the same
day Zweig filed his charges in the instant case against the Respondents, alleging that the
Company had discharged himat theUnion's demand and that the Union had caused his discharge
because he was not a member of the Union.10
Tuesday, February 24, is a regular payday at the Company's shop. At about 4.30 that
afternoon Zweig returned to the shop to collect his pay. While there, he saw Meltzer, and asked
him whether he should come to work the following day. Meltzer replied in substance, "Please
don't Involve me in your politics. I haven't fired you and I don't mix." This time Zweig
chose to interpret Meltzer's equivocal remark as permission for him to go to work. The
next morning Zweig returned to work. He worked without interference that day, and has
continued in the Company' s regular employ without incident ever since.
Although perhaps not strictly germane to the issues of this case, the story would not be
complete without an account of what happened to Abravaya. After leaving Zweig on the morning
of February 24, Abravaya called at the Union's office. There he was interviewed by Gru,
who questioned him as to whether he had worked at the Original Custom Fur shop on Washing-
ton's Birthday. When Abravaya professed innocence, Gru told him to return to the Union's
office that evening. In the evening, Abravaya appeared before the members of his local's
executive board who questioned both him and Wasserman on the issue of whether he had
8The findings made in this paragraph are based upon a synthesis of the testimony of Zweig,
Abravaya, and Meltzer to the extent that that of each is credited. There are some direct
conflicts. Thus, Zweig testified, and Meltzer in substance denied, that Meltzer told him in
positive terms that he could not go to work because the shop chairman had been instructed not
to permit him to do so and Meltzer did not want to have trouble with the Union. In that respect,
however, the testimony of Abravaya, a disinterested witness, clearly supports Meltzer, and
I reject Zweig's addition, which I regard as an embellishment. Thus, too, Meltzer testified,
and Zweig denied, that he included in his closing remarks as he walked out of the room the
statement, "I haven't firedyou." Zweig admitted sucha statement was made to him by Meltzer
that day, but testified it was made late that afternoon when, as will more fully appear below,
Zweig again called at the shop for his paycheck and inquired whether he could go to work the
following morning. Meltzer agreed that he made the quoted statement in the afternoon, but says
he made it twice. Abravaya was vague in his recollection. Under cross-examination by
Meltzer he agreed with Meltzer that the statement was made, but upon redirect appeared
to recollect that it was made when Zweig, along with Abravaya, later appeared for his pay and
asked if he could work the following day. On recross, Abravaya candidly conceded confusion
in his memory, stating that he remembered the statement being made on one occasion, but
could not definitely place the time as in the morning or afternoon. Considering all the
circumstances surrounding Zweig 's morning and afternoon interviews with Meltzer that day,
I believe it improbable that the statement was made in the morning, probable that it was made
in the afternoon, and unlikely that it was made twice. With regard to this conflict, I am per-
suaded that Meltzer is mistaken in his memory, and find accordingly.
9According to Meltzer he told the Association's representative. "I haven't fired him, I have
nothing to do with the matter, he had no business to come in the showroom to ask me to go
to work, that is not the place, and neither was it the time."
10 The Respondents did not receive formal notice of these charges until several days later.
ABE MELTZER INC. 1519
worked for Original Custom Furs on the holiday . At that time Abravaya still continued to
protest his innocence . At the conclusion of the meeting , Abravaya inquired whether he could
return to work the following day. He was told that he could not and was directed to appear the
following day before a trial committee composed of union members for a hearing upon charges
lodged against him That evening Abravaya suffered a change of heart , and when he appeared
before the trial committee the following noon he confessed that he had worked on the holiday.
After an interval following the close of the hearing , Abravaya was told that since it was his
first offense no action would be pressed against him at that time , and that he could return to
work the following day . On Thursday February 26 . Abravaya resumed working for the Company,
and he, too , has continued to work without interference or incident since . No claim is made in
the complaint based upon Abravaya ' s loss of 2 days' work.
B. Analysis and conclusions
1. The alleged illegal discharge of Morris Zweig
Certain key factual issues in this case remain unresolved . First, there is an issue of fact
as to whether the Union made any demand upon the Company not to allow Zweig to go to work
on the morning of February 24. As noted above, Meltzer denied that any such demand was
made, as did also Sam Kalisch, 1 of the 2 union representatives who, according to the General
Counsel's theory of the case , communicated the Union's demand to Meltzer . The General Coun-
sel concedes that there is no direct evidence to show that such a demand was made. But he
insists that the surrounding circumstances support an inference to that effect, and require also
the rejection as not credible of the contrary testimony of Meltzer and Kalisch. In that connec-
tion he points particularly , though not exclusively, to the following combination of circum-
stances : (1) The statements earlier made by Gru to Zweig that the shop would be stopped if
Zweig attempted to go to work that day; (2) the visit paid by Union Representatives Gru and
Wasserman to the Company's shop shortly thereafter ; (3) the instructions given by those
union representatives to Shop Chairman Kalisch; (4) the fact that Kalisch and jasper were
observed going toward, and inferentially into, Meltzer's office shortly after Meltzer's arrival
at the shop; (5) the fact that Meltzer appeared to know when he spoke to Zweig and Abravaya
that there would be a " commotion" in the shop if they went to work, and (6) the absence,
according to the General Counsel, of any other plausible reason that Meltzer might have had
that day for declining Zweig's permission to go to work . The factual issue just adverted to
goes to the question of the Union' s causation or attempted causation of Zweig's alleged
discharge . Beyond that , however, there is a second unresolved factual issue , and that is whether
Zweig was discharged at all . The Respondents maintain, contrary to the General Counsel's
position , that Meltzer 's remarks to Zweig that morning , in response to Zweig's request for
permission to go to work, were not intended by Meltzer, and are not reasonably to be inter-
preted , as a denial of permission , even though Zweig, for ulterior purposes of his own they
say, chose to construe them otherwise.
Resolution of these factual issues in favor of the General Counsel would not dispose of the
case. There would yet remain the legal issue of whether Zweig's discharge, caused by the
Union under the circumstances shown, constituted a violation of Section 8 (b) (1) (A) and 8
(b) (2) by the Union, and of Section 8 (a) (1) and (3) by the Company.
Because I am convinced that the General Counsel, though he may be found right on the facts,
most be found wrong on the law. I deem it unnecessary here to resolve the factual issues
noted above , but shall proceedtoa considerationof the legal aspects on the assumption that the
General Counsel has succeeded in establishing that the Company, acting on the demand of
union representatives, discharged Zweig on the morning of February 24.
The legal issues in this case are simplified to a considerable extent by certain factual con-
cessions made by the General Counsel at thehearing . Thus, the General Counsel has conceded
that the Union's demand for Zweig's discharge, and the discharge itself, were wholly unrelated
to Zweig's expulsion from the Union more than a year before, or to the reasons for that ex-
pulsion. No claim is made that Zweig was treated differently than he would have been if he
were still a member of the Union. The General Counsel has also expressly eliminated from
this case any claim that the Union's demand for Zweig's discharge was based upon Zweig's
failure to comply with Gru's request to go to the Union. At the hearing the General Counsel
stated that his case was founded exclusively on the claim that the Union demanded Zweig's
discharge because Zweig had worked in another shopwithout union permission on Washington's
Birthday.
1 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is the General Counsel's primary position that the action taken against Zweig for that
reason infringed upon Zweig's statutory rights guaranteed by Section 7. In amplification,
the General Counsel reasons that the restriction against overtime work, though written into
the collective-bargaining agreement to which Zweig was subject, represented essentially
a union rule, regulation, or policy; that, in the exercise of his statutory right to refrain
from assisting the Union or participating in its concerted activity, Zweig was entitled to
refuse to comply with the Union's rule, regulation, or policy, and, correspondingly, with the
contractual provision that expressed it, that Zweig's conduct in working on Washington's
Birthday involved the exercise of a protected right; and that the punishment meted out to him
for doing so constituted, consequently, an invasion of that right, rendering those responsible
liable under the Act. Additionally, the General Counsel takes the position that even though
the Company might have been justified in discharging Zweig for cause for working in another
shop on a holiday, the mere fact that the discharge action here was inspired and caused by
the Union, and not initiated by the Company as its independent decision, was sufficient per se
to spell out illegal discrimination and causation--and this on the theory that a discharge
under such circumstances displays the Union's power and control over the employment
status, with the resultant tendency of encouraging union membership.
Principally because I am satisfied that Zweig's conduct in working at another shop on
Washington's Birthday violated a valid condition of employment contained in a collective-bar-
gaining agreement by which he was bound, I am unable to go along with either of the legal
theories advanced by the General Counsel My basis for reaching that conclusion is detailed
below.
It has been found that the Union has no independent rule or regulation imposing restrictions
on overtime or holiday work, other than it- general bylaw provision, referable to its con-
tracts in the industry, which makes it a punishable offense to violate the established standards
as to wages, hours, and working conditions. The record, it is true, does reflect that the
contractual restrictions against such overtime workhad their origin in a union policy designed
to spread employment in the industry, and were written into the contract, with employer
acquiescence, largely if not entirely with the objective of promoting and effectuating that
policy. But a contractual provision, particularly one which, as here, relates to working
standards that have been agreed upon between an employer and an exclusive bargaining
representative, acting as agent for and in the interest of all in the unit, is not necessarily
invalid and unenforceable against dissenters in the unit merely because it gives expression
to what was theretofore a union policy, or, for that matter a union rule or regulation. Indeed,
many provisions common in collective-bargaining agreements have had their genesis in the
effectuation of a union policy, and they are not invalid for that reason." A contractual condition
of employment, though reflecting a union policy, may not be denied validity unless it appears
that its enforcement through sanctions affecting the employment relationship is in itself
illegal under the Act, or that in designor application it is a subterfuge to achieve an objective
the Act forbids, or that through it the policies of the Act are otherwise being contravened,
The overtime and holiday work restrictions in the contract here in question are not at variance
with any provisions or policies of the Act. They relate primarily to hours of employment, and
though they apply also to restrict employees from working outside their regular hours for
other employers in the industry, including employers outsidethe contract unit, that alone does
not, as the General Counsel conceded during his oral argument, illegally trespass upon em- -
ployee rights under the Act. There can be little doubt that the objective of the restriction--t')
spread employment in the industry--was a legitimate union objective and one the Act does r.it
condemn. As already noted, there is no claim and no proof that the restriction in practice
was applied unfairly or in a discriminatory manner to favor union members in the bargaining
unit over nonmembers, and none that the restriction was otherwise designed or utilized as
a disguise to achieve illegal objectives or to contravene policies of the Act
It is undoubtedly true, as the General Counsel argues, that in the absence of a contract
Zweig would have had a clear right to refrain from assisting the Union in the futherance of
its spread-the-work policy and from participating in that concerted activity. But from that
it does not follow, as the General Counsel further argues, that he had an equal right to abstain
from complying with contractual provisions that fulfilled that policy. There is a very clear
u For example, a contractual provision that, in effectuation of a union policy considered
by the union in the interest of the bargaining unit as a whole, grants certain advantages in
employment retention to union officials or other special categories of employees. See,
Aeronautical Lodge v. Campbell, 337 U. 3 521; Ford Motor Co. v. Huffman, 345 U. S 330.
ABE MELTZER, INC. 1 521
difference between a situation where a union is seeking to promote or enforce a policy with
regard to working standards that have not yet attained contract stature , and one where such
standards have already been negotiated through the collective-bargaining process into con-
tractual conditions of employment. Once a union, as in the instant case, has achieved its goal
of writing employment conditions into a contract, and provided of course the conditions are
not illegal themselves, their performance by employees may no longer be regarded in the
statutory sense as assistance to the union or participation it its concerted activity from which
employees are entitled to refrain. The entire scheme of the Act contemplates that when valid
provisions governing employer -employee relations have been negotiated into contract form,
such provisions are to be observed, not only by the union and employer who sign the con-
tract, but by all employees in the bargaining unit for whom the union acts as statutory agent,
regardless of their membership or nonmembership in the labor organization. And conduct
engaged in by an employee in contravention or derogation of the contract--such as Zweig's
conduct in working for another employer on a holiday in violation of the contractual overtime
restrictions-- may not be found sn activity protected under Section 7 of the Act. Nor, as a
necessary corollary to that proposition, may reprisal measures taken by the union or
employer against an employee for engaging in such conduct be found an infringement of the
employee's statutorily protected rights.
As noted, the General Counsel additionally contends that illegal discrimination by the Com-
pany and illegal causation by the Union must be found in this case for the reason alone that
Zweig's alleged discharge was pressured by the Union anc: not initiated by the Company. But
that contention in my opinion stands on no firmer ground. In his argument the General Counsel
cited three cases to support his contention - Fred P. W,i3sman Company, 69 NLRB 1002,
enfd. 170 F. 2d 952 (C. A. 6), American Pipe and Steel Corporation, 93 NLRB 54, and Radio
Officers' Union etc., 93 NLRB 1523, enfd. 196 F. 2d 960 (C. A. 2), 347 U. S. 17. None of these
cases, or others like them which reach the same conclusion on the same rationale, are in
point, for in none of them does it appear, as it does in the instant case, that the alleged illegal
action was related to the performance of a valid contractual obligation. The Weissman case
simply involved a situation where an employer acquiesced in an antiunion group's conduct in
forcibly excluding from employment a number of prounion employees because of their union
sympathy, thereby in effect participating in clearly unlawful discrimination The other two
cases cited involved situations where employees, through union members, were denied em-
ployment because they failed to clear for employment in accordance with their union's member-
ship regulations. In both these cases, the Board emphasized that there was no contractual
provision requiring such clearance, and found that the unions in causing the action undertaken
by the employers were simply enforcing a union membership regulation. As stated in the
American Pipe case, the rule guiding the Board to its determination was that
an employer's acceptance of the determination of a labor organization as to who shall
be permitted to work for it is violative of Section 8 (a) (3) of the Act, where ... no lawful
contractual obligation for such action exists. [Emphasis supplied
That rule clearly is not applicable to the situation involved in this case. For, as has been
found, the record here shows a valid contractual provision which prohibited Zweig from
engaging in the conduct for which the Union sought his discharge, and which made that conduct
a dischargeable offense. As the Company was expressly permitted to discharge Zweig for
that reason under the contract, it is difficult to perceive why its action, which the General
Counsel's argument here presupposes would not have violated Section 8 (a) (3) if initiated
by the Company, became tainted with illegality because aemanded by the Union Certainly
the Union, as the exclusive bargaining representative, had a lawful interest in policing the
contract to see to it that individual employees did not infringe restrictions that were written
into the contract to promote the general welfare of the represented group as a whole. Unlike
the situation in the Weissman case, the Union's motivation which led it to pressure the
Company into action against Zweig was concededly unrelated to Zweig's membership or non-
membership in the Union, and hence was not inherently discriminatory within the meaning of
Section 8 (a) (3). Unlike the situations in the American Pipe and Radio Officers' cases, the
Union's pressure was not aimed solely at enforcing a union membership regulation. Rather,
the record supports a finding, here made, that the Union's action was aimed at vindicating its
contractual right.
Moreover, it is to be observed that the only discrimination condemned by the Act is that
which has a tendency to encourage or discourage union membership. The underlying rationale
339676 0 - 55 - 97
1 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the American Pipp and Radio Officers' cases, and others like them, is that where an
employer need not but nevertheless does submit to a labor organization's unilateral determina-
tion as to who shall or shall not be permitted to work, it forcibly demonstrates to employees
that membership in the labor organization is desirable and thus tends to encourage such
membership. But that rationale is not I think applicable to a situation where, as here, a condi-
tion of employment sought to be enforced has been bilaterally determined in advance by valid
contractual covenant, and especially so where, also as here, the condition relates to what is
primarily a working standard rather than a regulation governing the relationship of em-
ployees to a union.
It follows, of course, from the finding here made that the Company's alleged discharge
of Zweig was not discriminatory within the meaning of Section 8 (a) (3), that the Union's
alleged inducement of that discharge was not violative of Section 8 (b) (2); for the crux of
the 8 (b) (2) allegation is that the Union caused the Company to discriminate against Zweig
in violation of Section (a) (3). It has earlier been established that, even on the basis of the
General Counsel's factual premises, no violation of 8 (a) (1) or 8 (b) (1) (A) can be predicated
upon Zweig's alleged discharge, because the claimed reprisal measures were undertaken
for conduct which did not constitute lawful protected activity within the contemplation of
Section 7. For the reasons stated, it will be recommended that the unfair labor practice
allegations relating to Zweig be dismissed.
2. The alleged independent acts of restraint and coercion by the Union
The complaint alleges the Union violated Section8(b) (1) (A) by blocking employees' ingress
to the Company's plant, and by assaulting and threatening to assault the Company's em-
ployees. The incidents relied upon are those involving Zweig and Abravaya that occurred
in front of 333 Seventh Avenue between about 8.20 a, in. and 8:30 a. in. on the morning of
February 24, 1953. In the case of Abravaya, I think the record establishes at least a technical
assault and also a momentary blocking of ingress. In the case of Zweig. I find no actual
assault or threat of assault, and have some doubt as to whether the record facts sustain
a finding of physical blocking of ingress. However. I find it unnecessary to determine these
matters, for, as in the case of Zweig's alleged discharge and largely for the same reasons.
I am satisfied that even though the General Counsel's factual premises are accepted, no
violation of Section 8 (b) (1) (A) is made out.
A violation of that section is not proved merely by a showing that a union representative
has assaulted an employee or physically blocked his ingress to the plant. It is not every act
of union violence or physical obstruction that comes within the scrutiny of the Board. While
such conduct is no more appealing to me than it is to the General Counsel, I must recognize
that the Act was not designed to confer upon the Board the jurisdiction of a police court.
For union conduct to fall within the condemnation of Section 8 (b) (1) (A). it is not alone
enough that it be of a character that restrains and coerces. In addition it most be established
that the restraint and coercion is directed against the exercise by an employee of a right
protected by Section 7 of the Act. And it is in that aspect that the General Counsel's case fails.
According to the General Counsel's position, Zweig and Abravaya were blocked from entering
the building and were assaulted and threatened with assault as a reprisal measure for having
worked on Washington's Birthday, He contends this constituted restraint and coercion of
Zweig and Abravaya, as well as other employees, in their right to refuse to comply with those
provisions of the contract which, he says, incorporated union rules and regulations relating
to overtime work. In short, his argument here is the same as the one relied upon by him to
support a violation of Section 8 (b) (1) (A) and 8 (a) (1) in connection with the alleged discharge
of Zweig. It fails for the same reasons. It has been found that Zweig, and Abravaya as well,
acted in violation of a valid contractual condition of their employment by working in another
shop on a holiday. Their conduct therefore was not a lawful activity protected by Section 7
of the Act. And since it was not, the action taken against them by the Union for having engaged
in such activity did not constitute restraint and coercion in the exercise of a right protected
by Section 7. It is so found. Accordingly, the dismissal of the 8 (b) (1) (A) allegations of the
complaint will be,recommended.
u No claim is made by him that the Union's conduct was engaged in for any other reason.
At the hearing, the General Counsel expressly conceded that he had not tried the case on the
theory, and was making no claim, that the alleged blocking and assaults were connected with
the refusal of Zweig andAbravaya to go to the Union, thereby ruling out of this case considera-
tion of that factor.
ST. LOUIS CAR COMPANY 1523
Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. Furriers Joint Council of New York affiliated with International Fur & Leather Workers
Union of the United States and Canada is a labor organization within the meaning of Section 2
(5) of the Act.
2. Abe Meltzer, Inc., is engaged in commerce within the meaning of Section 2 (6) and (7)
of the Act.
3. The Respondents have not, as alleged in the complaint , engaged in unfair labor practices
within the meaning of the Act.
[Recommendations omitted from publication.]
ST. LOUIS CAR COMPANY and WAREHOUSE AND DISTRI-
BUTION WORKERS UNION, LOCAL 688, affiliated with
INTERNATIONAL BROT HERH OOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, AFL. Case No. 14 -CA-1104. June 28, 1954
DECISION AND ORDER
On January 27, 1954, Trial Examiner Lloyd Buchanan issued
his Intermediate Report in the above -entitled proceeding, finding
that Respondent had engaged in and was engaging in certain un-
fair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action, as het forth in
the copy of the Intermediate Report attached hereto. Thereafter
Respondent filed exceptions to the Intermediate Report and a
supporting brief.'
The Board has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
was committed. The rulings are hereby affirmed.2 The Board
has considered the Intermediate Report,' the exceptions and
brief, and the entire record in the case , and hereby adopts the
'Respondent also requested oral argument. In our opinion the record, the exceptions, and
the brief fully present the issues and the positions of the parties. Accordingly, the request is
denied.
2 Respondent excepts to the Trial Examiner's rejection in evidence of an exhibit which
purports to be a typewritten transcript of a dictating madhine recording of President
Meissner's conversation with employee Kellogg at the time he discharged her. Respondent
offered the exhibit "to avoid all questions on credibility" as to testimony about the discharge
conversation. The record, however, presents no dispute on this issue. Both Meissner and
Kellogg testified at the hearing. Their testimony is in substantial agreement on the material
facts of this conversation. The Trial Examiner resolved the only significant disagreement in
Respondent's favor. Moreover, we have examined the rejected exhibit and it reveals no claim
to the contrary. We therefore find that the Respondent was not prejudiced by the Trial Exam-
iner's ruling, even assuming arguendo that the Trial Examiner's ruling was incorrect.
s We note and correct an error in the Intermediate Report. The hearing was held on
December 17, 1953, rather than in October, as erroneously recited in the Intermediate
Report.
108 NLRB No. 222.