Jandel Furs

National Labor Relations Board - Board Decisions

Oct 9, 1952

100 N.L.R.B. 1390 (N.L.R.B. 1952)

1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(4) All other operating and maintenance employees, including
garagemen and servicemen, but excluding foremen, assistant foremen,
and employees including in voting groups (1), (2), and (3).
Although the employees in voting groups (1), (2), and '(3) may
constitute separate appropriate units, as -indicated above, they may
also be included in the same unit with the operating and maintenance
employees in voting group (4). In these circumstances, we shall not
make any final unit determination until we have first ascertained the
desires of the employees involved.
If a majority of employees in voting groups (1), (2), or (3) vote
for the same bargaining representative as those in voting group (4),
such employees will be taken to have indicated their desire to consti=
tute a single appropriate unit, and the Regional Director conducting
the elections directed herein is instructed to issue a, certification of
representatives to such labor organization for a unit comprising em-
ployees in voting group (4), plus the employees in other voting groups
voting for the same labor organization, which unit the Board, under
such circumstances, finds to be appropriate for purposes of collective
bargaining. If a majority of employees in any of voting groups (1),
(2), or (3), vote for a different representative, the employees in that
voting group will be taken to have indicated their desire to constitute
a separate appropriate unit, and the Regional Director is instructed'
to issue a certification of representatives to the winning labor organi- '
zation for a unit comprising the employees in that voting group, which
the Board, under such circumstances, finds to be appropriate for pur-
poses of collective bargaining.
[Text of Direction of Elections omitted from publication in this
volume.]
JANDEL FURS, A PARTNERSHIP COMPOSED OF JOSEPH ANDELMAN, DAVID,
SILBERMAN, AND JULES RENDELMAN and ABE WEINSTEIN
FUR WORKERS UNION LOCAL 72 (WASHINGTON, D. C.) OF INTERNA-
TIONAL FUR AND LEATHER WORKERS UNION OF UNITED STATES AND
CANADA and ABE WEINSTEIN . Cases Nos. 5-CA-363 and 5-CB-59.
October 9,1952
Decision and Order
On December 14, 1951, Trial Examiner Charles L. Ferguson issued
his Intermediate Report in the above-entitled proceeding, finding that'
the Respondents had not engaged in and 'were not engaging in certain
unfair labor practices and recommending that the complaint herein be
dismissed in its entirety. Thereafter, the charging party filed excep-
100 NLRB No. 234.
JANDEL FURS 1391
Lions to the Intermediate Report and the Respondent Company filed
a brief in support of the Trial Examiner 's Intermediate Report and
Recommended Order.'
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 Inter-
mediate Report, attached hereto, the exceptions and brief, and the
entire record in the case, and finds merit in the exceptions to the extent
indicated below. In all other respects the Board adopts the findings
and conclusions of the Trial Examiner.
1. We do not agree with the Trial Examiner's conclusion that the
Respondents did not maintain in force and effect a contract containing
illegal closed-shop provisions. The 1947 contract between the Re-
spondents included a provision that all employees should be members
in good standing in the Respondent Union and that the Respondent
Company would "apply exclusively" to the Respondent Union for
workers. The 1949 extension of that agreement modified this particu-
lar provision only by stating that "The provisions . . . are subject
to any enactments or amendments that may become effective as a result
of Congressional action ." It is clear that this last provision did not
disturb the continued existence and inclusion of the patently illegal
closed-shop provisions, and fails, as a savings clause, to purge the
agreement of those unlawful restrictions upon enlployment.2 This
conclusion is substantiated by the fact that the Respondents made
no effort to inform the employees that any contrary condition of
employment existed. We find, therefore, that the Respondents main-
tained a contract containing illegal closed-shop provisions in full force
and effect. The Board has previously found such conduct to be
violation of the Act even where, as here, the parties did not attempt
actively to apply the coercive measures incorporated in the agreement,
as the mere existence of such provisions acts as a threat to the rights
of employees guaranteed in Section 7 of the Act.3 Accordingly, we
find that the Respondent Company thereby violated Section 8 (a) (1)
and Respondent Union thereby violated Section 8 (b) (1) (A) of
'The charging party also moved to remand this proceeding to the Trial Examiner for
further hearing for the purpose of receiving the testimony of two Board field examiners
as to certain admissions purportedly made by the Respondents in conferences preceding
the hearing . The motion is hereby denied.
8 Cf. Unique Art Manufacturing Co., 83 NLRB 1250; Aluminum Ore Company , 85 NLRB
121, and cases cited therein.
3 See Port Chester Electrical Construction Corporation , 97 NLRB 354, where the Board
found that the employer and the union violated the Act in ietaining an unlawful closed-
shop provision in their contract "which they neither intended to, nor did in fact , enforce."
The Board found that the parties had not, in fact, enforced the illegal provision but held
that "Such an unlawful provision serves no less as a restraint on employees ' right to
refrain from joining an organization than if the parties intend to enforce it " See
also Monolith Portland Cement Compan y, et at ., 94 NLRB 1358 , C Hager if Sous Hinge
Manufacturing Company, 80 NLRB 163.
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act. Absent any attempt by the parties to utilize the unlawful
provisions we do not find, however, that the Respondents' conduct
in this regard violated Section 8 (a) (2), 8 (a) (3), and 8 (b) (2)
2. We also disagree with the Trial Examiner's conclusions and
recommendation pertaining to the allegation in the complaint that the
Respondents violated the Act by restricting welfare fund benefits to
members of the Respondent Union. The Trial Examiner based his
conclusion that the complaint should be dismissed with respect to this
allegation on the ground that the violation, if one existed, had become
moot by virtue of a contract executed by the Respondents, following
hearing in these cases, which removed the qualification of membership
in good standing for participation in the welfare fund. If, however,
the Respondents violated the Act by the original exclusion of non-
members of the Union from participation in the welfare fund benefits,
it is clear, according to the consistent rulings of this Board, that dis-
continuance of the illegal conduct does not render this violation moot.b
And the courts have sustained the Board in that position s
The Trial Examiner also alluded to the question of whether the
Board was without jurisdiction of this particular situation because of
nonjoinder in the case of other employer participants in the welfare
fund program. We believe it sufficient to note that the contract con-
taining the program was signed as a separate and individual agree-
ment by the Respondent Company and the Respondent Union, al-
though other identical contracts were also executed separately by other
employers in the city. Under these facts there seems no legal question
as to the Board's authority to determine whether this specific con-
tract signed by the Respondent Company was in violation of the Act.
From a date 6 months before the filing and service of the charges in
these cases to September 12, 1951, it is conceded that the Respondents
required membership in good standing in the Respondent Union for
participation in the benefits of the welfare program established by the
contracts effective between the parties during that period.' By ad-
mittedly discriminating against nonmembers of the Union in the dis-
tribution of these benefits accumulated by assessment of the Employer
* See Port Chester Electrical Construction Corporation, supra.
5 See Salant d Salant, Incorporated , 87 NLRB 215, and cases cited therein. The Trial
Examiner also found that "there had been no wilful purpose or design on the part of
either the Union or the [ Employer 's] Guild to evade or violate " the amended Act In
continuing the requirement of membership in good standing . The motivation of the
parties, however , is pertinent to the commission of such a violation only insofar as It
affects the results of the misconduct remaining to be dissipated following the correction
of the violation.
6 See, for example , N. L. R. B. v. Oertel Brewing Co., 197 F. 2d 59 ( C. A. 6) May 29, 1952,
enforcing 93 NLRB 530.
4 While the contracts of 1947 and 1949 do not specifically set forth the requirement
of membership in good standing in the Union , it was stipulated at the hearing, and we
had, that at all times up to September 12, 1951, the regulations governing the fund
limited benefits to such Individuals.
JANDEL FURS 1393
of a percentage of the wages of all its employees, and encouraging
membership in and rendering support to the Union by such discrim-
inatory conduct, the Board finds that the Respondent Company vio-
lated Section 8 (a) (1), 8 (a) (2), and 8 (a) (3) of the Act. By its
conduct, we find that the Respondent Union violated Section 8 (b) (1)
(A) and 8 (b) (2) of the amended Act.
3. In accord with the Trial Examiner, the Board finds that the
Respondent Company did not refuse to rehire, or the Respondent
Union demand such a refusal to rehire, Abe Weinstein because of
nonmembership in the Respondent Union.
The Effect of the Unfair Labor Practices upon Commerce
Such of the activities of the Respondents, as set forth above, which
have been found to constitute unfair labor practices, occurring within
the operations of the Respondent Company, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
The Remedy
We have found that the Respondent Company violated, Section
8 (a) (1), 8 (a) (2), and 8 (a) (3) by maintaining in force and
effect contracts providing for an illegal closed shop and restricting
welfare fund benefits to members in good standing of the Union.
By like conduct, we have found that the Respondent Union violated
Section 8 (b) (1) (A) and 8 (b) (2) of the amended Act. As the
record shows, however, that the Respondents have effectively removed
such illegal provisions from their collective bargaining agreements,
the Board finds that no useful purpose would be served by requiring
affirmative action, other than specifically provided hereinafter, on the
part of the Respondents. To prevent recurrence of such conduct the
Board will nevertheless order that the Respondents cease and desist
from engaging in such unlawful activity.
Order
Upon the entire record in these cases, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board orders that :
1. The Respondent Jandel Furs, a partnership composed of Joseph
Andelman, David Silberman, and Jules Rendelman, Washington,
D. C., their agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Including in its collective bargaining contracts with the Re-
spondent, Fur Workers Union Local 72 (Washington, D. C.) of
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Fur and Leather Workers Union of United States and
-Canada, or with any other labor organization, any provisions which
require membership in such Union as a condition of employment or
which require the Respondent Company to give preference in employ-
ment to members of such Union, except as authorized in Section 8
(a) (3) of the Act.
(b) Including in its collective bargaining contracts with the Re.
spondent, Fur Workers Union Local 72 (Washington, D. C.) of Inter-
national Fur and Leather Workers Union of United States and Canada,
^or with any other labor organization, any provisions which require
membership in such Union as a condition for participation in welfare
fund benefits.
(c) In any other like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their right to self--
,organization, to form labor organizations, to join or assist any labor
organization, to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain from
any or all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in Section 8 (a) (3)
of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at their facilities in Washington, D. C., copies of the notice
attached hereto marked "Appendix A."" Copies of said notice, to
be furnished by the Regional Director for the Fifth Region, shall,
after being duly signed by the Respondent Company's representative,
be posted by the Company immediately upon receipt thereof and main-
tained by it for at least sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Company
to insure that said notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for the Fifth Region in writing
within ten (10) days from the date of this Order as to what steps the
Respondent Company has taken to comply herewith.
H. The Respondent Fur Workers Union Local '72 (Washington,
D. C.) of International Fur and Leather Workers Union of United
States and Canada, its officers, representatives, agents, successors, and
assigns, shall :
' 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."
JANDEL FURS 1395
1. Cease and desist from :
(a) Including in its collective bargaining contracts with the Re-
spondent, Jandel Furs, or with any other employer, any provisions
which require membership in the Respondent Union as a condition of
employment, or which require such employer to give preference in
employment to members of such Union, except as authorized in Section
8 (a) (3) of the Act.
(b) Including in its collective bargaining contracts with the Re-
spondent, Jandel Furs, or with any other employer, any provisions
which require membership in the Respondent Union as a condition
for participation in welfare fund benefits.
(c) In any like or related manner restraining or coercing employees
of Jandel Furs, or of any other employer, in the exercise of their right
to self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choosing, to
engage in concerted activities for the purpose of collective bargaining
or other mutual aid and protection, and to refrain from any and all
such activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a con-
dition of employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its offices in Washington, D. C., copies of the notice at-
tached hereto marked "Appendix B." 9 Copies of said notice, to be fur-
nished by the Regional Director for the Fifth Region, shall, after be-
ing duly signed by an official representative of the Respondent Union,
be posted by the Respondent Union immediately upon receipt thereof
and maintained by it for a period of sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to mem-
bers are customarily posted. Reasonable steps shall be taken by the
Respondent Union to insure that said notices are not altered, defaced,
or covered by any other material.
(b) Mail to the Regional Director for the Fifth Region signed
copies of the notice attached hereto as Appendix B, for posting, if
the Respondent Company is willing, at the Company's facilities at
Washington, D. C., and at all other places where notices to employees
are customarily posted.
(c) Notify the Regional Director for the Fifth Region in writing
within ten (10) days from the date of this Order as to what steps the
Respondent Union has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, as amended, against the
Respondents be, and it hereby is, dismissed insofar as it alleges that
9 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."
22T260-53-vol. 100-&9
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondents discriminatorily refused to rehire Abe Weinstein in
violation of Section 8 (a) (1), 8 (a) (3), 8 (b) (1) (A), and 8 (b) (2)
of the amended Act, and insofar as it alleges that the Respondents
violated Section 8 (a) (2), 8 (a) (3), and 8 (b) (2) of the amended
Act, through the existence of provisions for a closed shop in their col-
lective bargaining agreement.
MEMBER PETERSON took no part in the consideration of the above
Decision and Order.
Appendix A
NOTICES TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT include in our contract with FUR WORKERS UNION
LOCAL 72 (WASHINGTON, D. C.) OF INTERNATIONAL FUR AND
LEATHER WORKERS UNION OF UNITED STATES AND CANADA, or with
any other union, any provisions which require membership in
such union as a condition of employment or which require us to
give preference in employment to members of such union, except
as authorized by Section 8 (a) (3) of the National Labor Rela-
tions Act, as amended.
WE WILL NOT include in our contract with the aforesaid union,
or with any other union, any provisions which require member-
ship in such union as a condition for participation in welfare
fund benefits.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their right to
self-organization, to form labor organizations, to join or assist
any labor organization, to bargain collectively through repre-
sentatives of their own choosing, to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condi-
tion of employment, as authorized by Section 8 (a) (3) of the
Act.
JANDEL FURS,
Employer.
Dated----------------------- By------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days and must
not be altered, defaced, or covered by any other material.
JANDEL FURS 1397
Appendix B
NOTICE TO ALL MEMBERS OF FUR WORKERS UNION LOCAL 72 (WASH-
INGTON, D. C.) OF INTERNATIONAL FUR AND LEATHER WORKERS
UNION OF UNITED STATES AND CANADA AND TO ALL EMPLOYEES OF
JANDEL FURS
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT include in our contract with JANDEL FURS, or
with any other employer, any provisions which require member-
ship in our union as a condition of employment, or which require
such employer to give preference in employment to our members,
except as authorized by Section 8 (a) (3) of the Act, as amended.
WE WILL NOT include in our contract with JANDEL FURS or with
any other employer, any provisions which require membership
in our union as a condition for participation in welfare fund
benefits.
WE WILL NOT in any like or related manner restrain or coerce
employees Of JANDEL FURS, or of any other employer, in the
exercise of their right of self-organization, to form, join, or assist
labor organizations, to bargain collectively through representa-
tives of their own choosing, to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities, ' except to
the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment, as authorized by Section 8 (a) (3) of the Act.
FUR WORKERS UNION LOCAL 72 (WASHINGTON,
D. C.) OF INTERNATIONAL FUR AND LEATHER
WORKERS UNION OF UNITED STATES AND
CANADA, .
Labor Organization.
Dated ---------------- By -------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days and must
not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon separate charges duly filed by Abe Weinstein, an individual, herein called
the Charging Party, the General Counsel of the National Labor Relations B'oard,'
I The General Counsel and his representatives at the hearing are herein referred to as
the General Counsel, and the National Labor Relations Board as the Board.
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Regional Director for the Fifth Region (Baltimore, Maryland), on
February 23, 1951, issued an order consolidating the cases and, on the same date,
a consolidated complaint against Jandel Furs, Inc.,' herein called the Respondent
Company, and Fur Workers Union Local 72 (Washington, D. C.) of International
Fur and Leather Workers Union of United States and Canada, herein called the
Respondent Union, alleging that the Respondent Company and the Respondent
Union have engaged in unfair labor practices affecting commerce within the
meaning of Section 8 (a) (1), (2), and (3) and Section 8 (b) (1) (A) and (2),
respectively, and Section 2 (6) and (7) of the Labor Management Relations Act,
1947, 61 Stat."136, herein called the Act. Copies of the charges, the complaint.
the order of consolidation, and notice of hearing were duly and timely served
upon the appropriate parties.
With respect to the unfair labor practices, the complaint, as originally issued,
alleged, in substance, that: (1) Since December 9, 1949, the Company and the
Union "have maintained in force and effect a collective bargaining agreement,"
and "have engaged in, and are engaging in, practices," requiring that "certain
classifications of employees" be hired "through the Union," and that "all such
employees (a) obtain a working permit from the Union before entering the
employ of the Company, and (b) become and remain members in good standing
of the Union within two weeks after commencement of their employment"; (2)
"on or about February 1, 1950 and continuously thereafter . . . pursuant to said
illegal and invalid collective bargaining agreement and practices" the Union
"did request and demand" that the Company "refuse to rehire Abe Weinstein,
one of its employees," and "pursuant" to such "demand of the Union," the Com-
pany "refused and is refusing to rehire" the said Abe Weinstein. During the
hearing the General Counsel amended the complaint to allege as an unfair labor
practice that since December 9, 1949, the Company and the Union "have main-
tained in force and effect a collective bargaining agreement containing an un-
lawful clause which requires the Company to contribute to the Union an amount
equal to approximately 2 percent of the gross earnings of all the Company's fur
worker employees for the purpose of insurance, sickness, hospitalization and
death benefits which are administered pursuant to Rules and Regulations pro-
mulgated by the Company and the Union and require that the recipients of
such benefits or funds be members in good standing of the Union or be members
of the families of members in good standing." By separate answer each Re-
spondent denied the commission of any unfair labor practices.
Pursuant to notice, a hearing was held at Washington, D. C., on April 16, 17,
18, 23, 25, and May 17, 1951, before me, the undersigned Trial Examiner, Charles
L. Ferguson, duly designated by the Chief Trial Examiner to conduct the hear-
ing. The General Counsel and each of the Respondents were represented by
counsel who participated in the hearing. The parties were afforded full oppor-
tunity to be heard, to produce, examine, and cross-examine witnesses, and to
introduce evidence relevant to the issues. At the conclusion of all the evidence
in the case counsel for the General Counsel and counsel for each of the Re-
spondents made an oral argument upon the record. The parties, by their re-
spective counsel, stated of record that they did not desire to file written briefs
and waived the filing of same.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following :
2 Later amended to read Jandel Furs, a partnership , composed as shown by the caption
In Case No. 5-CA-363.
JANDEL FURS
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
1399
Jandel Furs is a partnership composed of Joseph Andelman , David Silberman,
and Jules Rendelman . The firm, referred to herein as the Company , is engaged
in the manufacture , sale at retail , alteration , remodeling , restyling , repair, and
the cleaning and storage of fur coats, fur garments , and fur pieces . The prin-
cipal place of business is located at Washington , in the District of Columbia,
where the Company maintains a combined retail store and shop. It also has a
retail store at Baltimore , Maryland , and "an of5ce" or "an address" in New York
City. Apparently a shop is not maintained in connection with the Baltimore
store and the business there is "mostly selling" fur garments and fur pieces at
retail. The New York City place of business is "primarily a buying office."
Although no "stocks" are maintained in the New York City place of business
some "occasional" sales are made "if a customer calls there ." Only the Wash-
ington place of business is involved in this proceeding.
Jandel deals mostly in furs "in the higher priced bracket," predominantly
mink , and makes, sells, does remodeling , restyling, alterations , and repairs on
mink and other types of fur coats and garments at its Washington establishment.
Due to the fact that the making of long mink coats is "involved and lengthy"
and the Company does not have "sufficient people" in its Washington shop skilled
in mink work "to take care of" all of its mink work there, some of the work
in connection with the making of long mink coats is at times sent to New York,
but most long mink coats, practically all of the other types of mink garments and
pieces, and the Persian lamb garments, which it handles , are made, and all mink
and other alterations , remodeling , and repairs are done, in the Washington
shop.
The Company 's sales at its Washington establishment including fur garments
and fur pieces and services , aggregate "between $500 ,000 and $600 ,000" annually,
of which amount approximately $50,000 to $60 ,000 represents repairs, remodeling,
alterations, and cleaning and storage services. The Company 's "major pur-
chases are made in skin form," mostly mink , principally in New York City, "which
is the center of the fur industry of the whole country." The skins so purchased
are shipped from New York City, or other points outside the District of Columbia,
to its Washington place of business where they are made up "into finished
products ." The total value of skins annually purchased in New York City, or
at points outside the District of Columbia, and shipped to the Washington
establishment is "around $200,000, maybe more."
Jandel 's shop is one of the larger fur shops in the city of Washington regu-
larly employing 7 or 8 fur workers and sometimes at the peak of the "season"
as many as 10 or more . In addition in the store or sales department of its
Washington establishment the Company employs at least 1 person in office
work , who is mentioned in the testimony , and a sales force, the number so em-
ployed is not, however , specified.
It clearly appears that the Company is engaged in commerce within the
meaning of Section 2 (6) of the Act, which defines the term "commerce" as
"trade, traffic , commerce , transportation , or communication among the several
States, or between the District of Columbia . . . and any State or other Terri-
tory . . . or within the District of Columbia or any other Territory . . ." ( em-
phasis added ). Thus the business carried on by the Company "within the
District of Columbia" alone brings the Company within the Board 's jurisdiction,
and when the situation as a whole is considered , that is, the extension of its
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business into New York City and Baltimore, )Maryland, the employment at its
Washington place of business of from at least 8 or 9 to 12 or 13 people, accord-
ing to the course of business , the annual importation into the District of Colum-
bia from New York City and other points outside the District of materials of a
value of at least $200,000, and the annual sales of goods and services at the
Washington store and shop aggregating from $500,000 to $600,000, I find it would
effectuate the purposes of the Act for the Board to assume and assert its juris-
diction in this matter.
II. THE ORGANIZATION INVOLVED
Fur Workers Union Local 72 (Washington, D. C.) of International Fur and
Leather Workers Union of United States and Canada, is a labor organization
admitting to membership employees of the Respondent Company.
III. THE UNFAIR LABOR PRACTICES
A. The fur industry in Washington-fur shops fur workers-and the Union
The testimony is that there are about 40 retail fur establishments in the
District of Columbia. Most of them operate a shop in connection with the
business where such work as repairing, remodeling, and restyling is done, and
in the larger shops, such as the Jandel shop, fur garments and pieces are made.
Many of these shops employ only 1, or at most 2, year-around fur workers and
during the busy season not more than 2 or 3 at the most. Also in many small
establishments "the owner himself does the shop work with maybe a woman
assisting him" doing the "finishing job." Some, in one or two instances large
retailers, do not maintain a shop but "send all their work out." The number of
operators and fur workers of all classifications employed in the larger shops
varies, according to the business, from 4 or 5 to 7 or 8 "year around" employees
with "temporary" workers added during, and generally continuing through, the
"season." The percentage of fur workers, who reside and make their home in
the Washington area, employed on a year-around basis is not large, and a con-
siderable number, apparently the larger percentage, work on a seasonal basis.
The "busy season" or "the season" varies somewhat from shop to shop with
some shops having a longer season than others. However, the season in Wash-
ington runs from 7 to 8 months, commencing in May or June and closing with
the end-of that calendar year. In some shops the season may be extended a week
or more into January but the end of the calendar year is generally and commonly
recognized as the close of the season. It is the custom to put on "extra
help . . . over the busy season . . . on a seasonal basis," and the fact that
a person is employed for the season, on that basis alone, is not construed or
understood as importing or creating an obligation on the part of either the
employer or the worker that the worker will be employed at or return to that
shop the next or following season, although such is ofttimes the case and in many
instances season after season. With the beginning of the new season the worker
may seek and find employment at some other shop which he considers as offering
better opportunities, which he is free to do, or the shop owner, even though the
worker's service had been satisfactory the previous season, may find another
who he deems more suitable for, or more competent to do, the type of work pre-
dominating in that shop, or for any other reason the owner is free to employ
another. During the season all of the Washington area fur workers are employed
but as the season draws to a close the seasonal or temporary workers are let go,
as the slack in work may require, until with the end of the season, or within a
short time thereafter, the shop personnel has been reduced to the regular group
JANDEL FURS 1401
of year-around employees. Even during the "slack season," the period between
the end of the season or busy season and the beginning of the next, the lack of
work in a shop sometimes becomes such that some of the regular or year-around
employees will divide the work by working alternate weeks or some similar
arrangement. It is also during this period that the regular employees take their
vacation. Thus during the interim between the end of a season and the begin-
ning of the next, or the "slack season," "quite a number" of the fur workers are
not employed at their trade and with the beginning of the new season those
who do not have a continuing arrangement or understanding begin looking about
tor a job
Just how it had its beginning and developed or how long it has existed does not
appear but through the years the meeting place and exchange among the fur
workers of the Washington area for news about job openings, overtime work,
and happenings in the trade, as well as passing social and personal contacts with
fellow workers in that trade, has come to be 12th and G Streets, NW., in Wash-
ington, referred to throughout the testimony as "the corner." It seems a number
of fur establishments are located in that immediate vicinity or within a radius
of a few blocks and that certain eating places frequented by fur workers at lunch
time are nearby, so it has become the custom for fur workers to congregate or
"get together" at this "corner" during the usual lunch period on workdays.
Workers looking for a job come there and inquire of their fellows whether they
know of an opening and anyone knowing of a job opening in the shop where he
works, or any other shop, "will pass the news around." During the busy season a
large amount of overtime work becomes available, that is, work after or beyond
the regular work hours. It is the custom during the season for workers who want
to do overtime work but are employed in shops which do not do, or may not at
the particular time have, overtime work to inquire among the workers at the
corner concerning opportunities for such work, and the corner has become the
principal source for that as well as other job information.
It was stated in the testimony of some union official that Respondent Local
Union 72 (Washington, D. C.) International Fur and Leather Workers Union of
United States and Canada, hereinafter generally referred to merely as the
Union, is an old union with a history of 35 years of continuous existence. At
the time of the hearing it had a membership of 105, and during the years 1949 and
1950, when the events to which the testimony herein relates occurred, the mem-
bership was about the same.
Respondent Union has no separate constitution or bylaws, nor any formally
adopted or written rules or regulations of any kind. It does not have, and so
far as appears, has never had, an gfn"ce, hall, or headquarters, or even a telephone
listing or mail address, or any salaried or paid officers, or employees, or business
or other agents of any kind. All of its officers and members of its executive
board work at the fur workers' trade and serve as union officers without com-
pensation. In recent years meetings have been held at the Jewish Community
Center. Apparently little, if any, action of a formal nature has been taken about
anything.
While no adopted or written rules or bylaws have been in force, certain customs
or standards have developed and have become more or less accepted and adhered
to, as for example admission to membership. It has been the custom "for years
and years" that to become "a full member," "a full-fledged member," of this
Washington local, a fur worker "must first work a busy season and go through
the slack season or slow period in Washington." Thus at the beginning of the
following busy season he is eligible to become a member of the local. Apparently
any fur worker meeting this requirement could, if he desired, become a member.
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The evidence discloses nothing to the contrary. This applied to newcomers to
the Washington area who were, or had been, members of the International Union
in some other city as well as to any who were not or previously had not been a
member of the International. It is not necessary to discuss in any detail the
considerations prompting this requirement. It had to do with stability and was
apparently born of experience with transients prone to come and go, stay awhile,
maybe return awhile, and newcomers from other cities who had yet to become
established in the Washington area, and the right and privilege of such persons
to share in certain benefits reserved to members of Local 72.
It was estimated, and there is naught in the evidence casting doubt on the
at least approximate accuracy of the estimate, that 99 percent of the fur workers
in the Washington area are members of the Union. Some of the few who were
not members of the Union, and never had been, work, and in some instances have
for many years, in shops with which the Union has and all along has had a
contract, and although they have been solicited to join the Union have never
done so.
It is not clear just how many shops are in operation in Washington. I have
noted that there are about 40 retail fur establishments in Washington and that
most, but not all, operate a shop of some kind in connection with their business.
However, the Union has, and at the times material herein had, a contract with
16 or 17 shops. This does not mean that the employees of the other shops, many
of which regularly employ only 1 or 2 workers at most, and not over 2 or 3 dur-
ing the season, are not members of the Union. The fact is that practically all
the fur workers in Washington shops, regardless of the size of the shop or whether
it has or does not have a contract with the Union, are members of the Union.
B. The collective bargaining agreement
For many years this Washington Local operated under only verbal agreements
with the shop owners concerning principally wages and hours. Somewhere along
the way, a reference in the testimony indicates in the early forties, it was deemed
advisable to have written contracts, and a standardized form used by the union
and employees in New York City was adopted, copied, and with such changes as
were thereafter from time to time negotiated in respect to hours, wages, and
vacations, was extended or renewed from year to year. This written contract
included certain union-security provisions, specifically referred to in paragraph
V of the complaint herein, recognized as valid prior to the enactment of the Labor
Management Relations Act of 1947.
When the Master Furriers Guild of Washington, hereinafter referred to as
the Guild, was first organized and commenced to function does not appear. It
is composed of 11 furriers or fur establishments in the city of Washington.
Respondent Jandel is a member of the Guild. One of the functions of the Guild
was to negotiate collective bargaining agreements with the Respondent Union.
These negotiations were limited principally to wages, hours, vacations, and like
matters, with renewals of the other provisions being purely perfunctory. The
contract as agreed to by the Guild and union negotiating committee was then
executed by each member of the Guild and the Union, and also by the Union and
the other 5 or 6 shops with which it maintained contracts but which were not
members of the Guild. Each firm or Company. with whom the Union main-
tained a contract, entered into a separate but the identical written contract or
extension or renewal as agreed upon by and between the Union and the Guild.
Under date of June 6, 1947, a contract was agreed upon and executed, as afore-
said, for a period of 2 years, expiring June 6, 1949. A copy of the Jandel contract
JANDEL FURS 1403
was put in evidence. This contract contained the following provisions which,
by virtue of a so-called supplementary or renewal agreement of 1949, to which I
shall next refer , are the subject or basis of certain allegations of the complaint.
1. The Firm agrees that all workers employed in the various crafts
required for the manufacture of fur garments , fur trimmings , or auxiliaries
used in the fur manufacturing business shall be members in good standing
in the Union.
2. The Firm agrees that it will apply exclusively to the Union for workers
required by it. In the event the Union is unable to furnish such workers
within a reasonable time, the Firm shall be permitted to engage any other
person provided such person shall apply to the Union for a working card
before starting to work and shall be engaged only upon presentation of such
working card . Such person will further apply for membership in the Union
not later than two weeks after employment . The Union agrees it will not
unreasonably withhold membership in the Union of any such person.
The employment of any workers not hired through the Union shall be dis-
continued by the Firm upon notice during said two weeks from the Union
that it can supply such workers.
Shortly prior to the June 6, 1949 , expiration date of the 1947 agreement, nego-
tiations for a renewal or extension of the contract were entered into between
committees representing the Union and the Guild . Joseph Andelman , one of the
Jandel partners and in charge of shop personnel and operations there, partici-
pated in these negotiations as representative of that firm . Sometime in June
1949, not fixed , after the June 6 expiration date of the 1947 agreement , a renewal
agreement , referred to as a supplementary agreement , was arrived at, and
thereafter executed by the Union with the various shops individually , including
Respondent Jandel. This agreement was for a period of 2 years expiring June
6, 1951 . The delay was caused by the discussion of minimum wages and vaca-
tions. An agreement was finally reached on an "across the board increase in the
minimum wage" and "an increase in the length of vacations for employees who
had been working only 1 year " and the negotiations concluded . By "year" was
meant as much as 1 season.
This 1949 supplementary or renewal agreement consists of 10 paragraphs.
Paragraph 1 reads:
It is mutually agreed that the union contract between the firm . . . and
the International Fur and Leather Workers ' Union Local #72 that expired
June 6, 1949 be renewed for a period of two years, with the following changes
and additions.
Paragraphs 2, 3, and 6 deal with wages, and paragraph 4, vacations.
Paragraph 5 relates to contracting "On any fur linings."
Paragraph 7 concerns disputes "over the question of classification of finishers
who may be handicapped because of age or otherwise."
Paragraph 9 provides that:
All terms and conditions in the 1947 contract together with the new provi-
sions of this agreement shall be retroactive to June 6, 1949 . ( Emphasis
added.)
Paragraph 10 reads:
The provisions of this contract are subject to any enactments or amendments
that may become effective as a result of Congressional action. ( Emphasis
added.)
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It will be remembered that the Labor Management Relations,Act, 1947, had
gone into effect August 22, 1947. The testimony is undisputed, all one way, con-
vincing, and is credited that the members of the joint negotiating committee,
both employers and union officers and representatives, were fully aware of the
inhibitions of the Act in respect to any extension of the union-security provisions
of the 1947 contract, above quoted, and which are attacked by the complaint, and
knew, were fully apprised of, and thoroughly discussed, the fact that under that
Act same could not validly be included and continued in an extension or renewal
of the contract or in a new contract. Union officers who participated in the 1949
negotiations testified, and at the time it was so expressed in the discussions had
during the negotiations, that it was hoped and believed the Act would be either
repealed or amended so that the union-security provisions of thq 1947 contract,
now complained of, would again become valid. Frank Brownstone of New York
City, the regional director of the Fur Workers Union, was present during and
participated in some of the 1949 conferences of the negotiating committees. He
advised that paragraphs 1 and 2 of the 1947 contract, above set out and against
which the allegations of the complaint are leveled, had become "invalid" and
"inoperative" and'bad no place in the renewal agreement then being formulated,
and suggested that a clause be inserted in the renewal agreement specifically
recognizing and declaring "the inapplicability of the union security provisions
(of the 1947 contract) outlawed by the Taft-Hartley Act," and that the above
"clauses (paragraphs 1 and 2 of the 1947 contract) should be inoperative as long
as the Taft-Hartley Act (as then in effect) is in existence, and can be reinstated
only if there is a modification or change in that Act" whereby they would again
be valid provisions. It is clearly and indisputably established, without a dis-
cordant note in the evidence, that it was the clear intent and purpose of the joint
committee to incorporate a proviso in the 1949 contract "that if the Taft-Hartley
law was repealed or amended (to so permit) the provisions (of the 1947 con-
tract) referred to as union security provisions (paragraphs 1 and 2) would then
become applicable." To that end and with that intent and purpose in mind
paragraph 10 of the 1949 renewal or supplementary agreement was drafted and
included in that agreement. Brownstone was not present at the time and did
not participate in the actual drafting of that proviso. Neither the Guild nor
the Union had the advice or counsel of an attorney during the 1949 negotiations
and no attorney representing either participated therein, nor was consulted in
connection with the drafting of the 1949 agreement or any part of it. Paragraph
10 was drafted "by some officer of the Local and the president of the Guild," both
furriers and not lawyers. The language used was their idea of expressing the
intent and the understanding of all the parties that while the union- security
provisions of the 1947 contract were recognized as invalid, inoperative, and in-
effective, should the Act, during the lifetime of the agreement, be amended or
repealed so that such provisions again became valid, they should then become
operative. As expressed by Philip Lerman, a member of the executive board of
the Union, and one of the union representatives in the 1949 negotiations : "So
we put in there (the 1949 agreement) clause 10 which we thought would take
care of the other clauses in the contract by saying that in the event of any repeal
or amendment of the Taft-Hartley law our contract will stand as it was but
until such time the other clauses which are against the Taft-Hartley law would
not be in existence."
Apparently the matter was not one of particular concern to the Respondent
Local Union as it is claimed , and the claim was pretty well substantiated that
the provisions of paragraphs 1 and 2 of the standardized form of agreement
which they had been using for many years had not ever , even prior to the en-
JANDEL FURS 1405
actment of the 1947 Act, been enforced, observed, or carried out by either the
Union or the employers, and insofar as the intent of the parties about the meaning
of paragraph 10 can be deduced from their conduct and actions it will appear by
the findings hereinafter made that these union-security provisions were not in
practice recognized, followed, enforced, or carried out by either of the parties
subsequent to the execution of the 1949 supplementary agreement. It seems
that the joint committee was merely trying to follow the Regional Director's
recommendation that the renewal provide for the reactivation of these clauses
as a part of the contract in the event subsequent legislative enactments again
made such provisions valid in a labor management contract.
Without entering into an analysis of the language used in paragraph 10 of the
1949 agreement and what it does- actually say or does not say and whether or
not it accurately expresses what the framers had in mind, and to which they
had agreed, and looking, without technical refinements concerning the con-
struction of contractual language, to the clear intent of the parties in respect
thereto, I find that Respondents did not, as is alleged in the complaint, after
December 9, 1949,3 in fact, maintain in force and effect a collective bargaining
fgreement
containing an unlawful clause (1) which requires the hiring of certain clas-
sifications of employees through the Union, and (2) which requires all such
employees (a) to obtain a working permit from the Union before entering
the employ of the Company, and (b) to become and remain members in'
good standing of the Union within two weeks after commencement of their
employment.
It is not alleged and the General Counsel does not claim that in this proceeding
the mere execution of the supplementary agreement of 1949 can be found to be
a violation of the Act.
As tending to verify the intent of the parties in drafting the 1949 supplemen-
tary renewal agreement, the Respondent Union put in evidence another or fur-
ther supplementary agreement between the Respondent Company and the Re-
spondent Union, executed May 1, 1951, during a recess of the hearing, reading
as follows •
Whereas, it was the intention of the parties to said agreement to provide
in Paragraph 10 thereof that all those provisions contained in the preceding
1947 contract which were prohibited by the Taft-Hartley Act, including the
provision requiring hiring through the Union, obtaining a working card from
the Union, becoming and remaining members in good standing of the Union
within two weeks after commencement of employment, shall not be regarded
as part of the agreement and be held in abeyance pending the repeal of
the Taft-Hartley Act or the enactment of amendments thereto which would
render any or all of the said prohibited provisions permissible under the
law.
Now, THEREFORE, in order to further clarify the intention of the parties
regarding the provisions of said Paragraph 10, and to make it absolutely
clear that it never was and is not now intended that any of the provisions
prohibited by the Taft-Hartley Act be part of the aforesaid 1949 agree-
ment, or to permit the parties to engage in practices prohibited by said Law,
a within a period of 6 months prior to the filing of the charge against the Union alone,
and service of a copy thereof on both the Union and the Company on June 9, 1950. The
charge against the Company was filed on August 10, 1950, and a copy thereof served on
August 11, 1950.
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it is agreed by and between the parties hereto that all of the aforesaid pro-
visions contained in the 1947-1949 agreement are hereby entirely elimi-
nated and deleted and not to be regarded as part of the aforesaid current
collective bargaining agreement effective from June 7, 1949 through June 6,
1951.
The complaint also alleges that since December 9, 1949, the Respondent
Company and the Respondent Union
have engaged and are engaging in practices (1) which require the hiring of
certain classifications of employees through the Union and (2) which re-
quires all such employees (a) to obtain a working permit from the Union
before entering into the employ of the Company and (b) to become and re-
main members in good standing of the Union within two weeks after
commencement of their employment. (Emphasis added.) . _
This allegation will be further discussed and ruled after the evidence bearing
on the issues thereby posed has been hereinafter developed and reviewed. Much
of the evidence relied upon by the General Counsel to support the allegation
is inherent in and incidental to and was adduced in connection with the allegation
of discrimination against Abe Weinstein, the charging party.
C. Weinstein, the alleged discriminatee and the charging party
Abe Weinstein, the alleged discriminatee, and the charging party herein,
first came to Washington from New York City about May 31, 1948. Prior to
that time he had not lived or worked in Washington. Weinstein describes
himself as "an all around furrier." He says that for approximately 25 years
before coming to Washington he had been self-employed "working on furs," and
had never worked in the fur trade as the employee of another. He was not a
member of the Fur Workers Union when he came to Washington and had never
been. He came to Washington pursuant to the promise of a job as a fur worker
in the shop of Cavalier Furs, where he commenced working about June 1, 1948.
He worked there 2 days when he "took sick" and "was sick" and unable to work
for "about 3 weeks." Recovering from the illness he "reported for work" at
Cavalier's but was told that his "place" had been "filled." Weinstein "then went
to Baltimore looking for work in a fur shop. There he worked in the fur shop of
Hutzler Brothers, a large department store, from sometime about the first of
July until the first week in September 1948, then at Miller's fur shop for "about
a week." He then returned to Washington and "went back to work for Cavalier"
on September 13, 1948, and continued working there until February 5, 1949, when
he was let out.
During the time he worked at Cavalier's that company did not have any over-
time work. Weinstein regularly mingled, during lunch periods, with the Wash-
ington area fur workers at the "corner" meeting place, heretofore described, and
"continuously" made inquiries among them as to "whether they knew of a place
where" be could "put in an extra hour or so" explaining that Cavalier's, where he
was then working, did not have any overtime work. Among those he contacted
in this connection were Harry Smith and Saul Heiman, both officers of the Re-
spondent Union. Weinstein learned of and was able to get some overtime work
at the Lustic shop and later at Sperling's. The extra or overtime work at
Sperling's was directly procured through the assistance of Heiman, who himself
worked there. After Weinstein was let out at Cavalier's, on February 7, 1949,
he immediately found work at Fuchs fur shop and worked there for about 3
weeks or until the end of that month. Later in April 1949, in a conversation
at "the corner" with a foreman at the District Fur Company, a union man, he
JANDEL FURS 1407
asked the foreman if he could give him "a couple days' work" and the foreman
told him to come to that shop where he was given 1 day's work and told that they
did not have any more extra work at that time.
The Union had nothing whatever to do with Weinstein getting or being let
out of the job at Cavalier's nor for that matter with the overtime jobs at which
he worked during the time he was working regular hours at Cavalier's, or at
Fuchs or the District Fur Company. True, both Smith and Heiman were officers
of Respondent Union and the District Fur Company foreman was a union man.
However, in assisting Weinstein to get work pursuant to his inquiries at the
corner they appear to have acted as individuals, one fur worker helping another,
and not in the capacity of union officials, nor did union considerations have
anything whatever to do with any of this employment or its termination. Dur-
ing the time Weinstein worked at Cavalier's and on the overtime work at Lustic's
and Sperling's and the short periods he worked at Fuchs and the District Fur
Company, he was not a member of the Union, did not have any kind of a union
permit or temporary book, or pay any union dues, nor was any demand made
upon him by anyone, either employer or the Union or any union representative,
that he become a member of the Union, or procure or hold or exhibit a work
permit or temporary book issued by the Union, or pay any dues to the Union.
Weinstein says that when he worked at Cavalier's in 1948 that Company did not
have a contract with the Union but that it entered into such a contract in 1949
after he was let out there. It is clear that in the latter part of May or early part
of June 1949, Cavalier did have a contract with the Union as that Company
was a member of the Guild at the time of the 1949 negotiations between the
Union and that organization. Apparently Sperling had a contract with the
Union as it was a member of the Guild in 1948. However, as has been noted,
such a large percentage of the Washington area fur workers were and are mem-
bers of the Union that most of the employees in Washington shops, whether or
not the shop has signed and executed the union contract, are members of the
Union, yet no one complained about Weinstein working wherever he could find
a job and union fur workers readily assisted him in finding work. During the
period that Weinstein worked at Cavalier's, presumably shortly after his return
to that shop in September 1948, some fur worker in that shop, who was a member
of the Union, told Weinstein "that it would be nice if" he (Weinstein) "would _
go to the (union) meetings and try to belong there." Pursuant to the suggestion
or invitation Weinstein commenced attending the meetings of the Union and
attended regularly thereafter until sometime after he filed the charge herein
against the Union.
In March, after he was let out at Cavalier's in February 1949, Weinstein filed
a suit in the courts of the District of Columbia against Cavalier based on a
claim that Cavalier had promised or agreed to give him "a year around job"
but had breached that agreement. Upon a trial of this case before a jury a
verdict was returned in Weinstein's favor for "around $1,900." Referring to
this verdict Weinstein was asked, "Do you remember the date of that award?"
He answered, "That was from February 1 of this year" (1951). Weinstein's
manner of speaking considered, I assume he meant that was the date the trial
was had and verdict rendered.
D. Weinstein is hired at Jandel's Shop
With the approach of the 1949 season Weinstein , looking for work, went
about "the middle part of May " to the Jandel place of business . He testified
that previously that spring in making inquiries about job openings among fur
workers at the corner he had contacted among others , as he had before done,
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harry Smith, who was, at that time, president of Respondent Union and had
asked Smith "whether he has any jobs available . . . and he ( Smith ) related
to me that I will not be able to be employed until every man that belongs to the
Union will go to work first and when all the men go to work and there is a job
available that he will not have any objection for me going to work in the shops."
Weinstein seems to say that thereupon he meekly abandoned any further effort
to obtain employment until Smith later informed him that "everybody was
employed" and then "I went out to seek employment , and I went several places,
and finally I came across Jandels." I am so dubious about this being factually
correct that I am unable to accept and consider it as a circumstance, though it
be purely background material, throwing any light upon the real issues in this
case. It was apparently overlooked and lost in the mass of detail which Wein-
stein undertook to relate and the many and varied statements attributed by him
to so many people at so many different times and places, with so little in the way
of corroboration , but Smith did testify that he did not at any time interpose any
objection or obstacle to or interfere with Weinstein seeking, getting, or working
at a job. According to the only reasonable inference I can draw from Wein-
stein's own testimony to this-point since coming to Washington no union official
or union member had ever interposed any obstacle of any kind, or attempted
to do so, to Weinstein getting work and, on the contrary, had even assisted him
to do so. Weinstein had even obtained some work during the early part of the
preceding slack season when a large percent of the fur workers was unemployed.
Weinstein says he went to Jandels about "the middle part of May" (1949) and
that he had been to "several places" before going there. From what I gather
of the customs and practices in the fur industry in Washington , it seems most
unlikely that by the "middle part of May " when the season was not yet under
way, "every" member of the Union would have already been employed. Further
in view of Weinstein's history and his disposition as revealed by this record, and
the attitude and temperament manifested as a witness, I am of the firm opinion
that such a statement as he attributes to Smith would not have deterred him, as
he claims, from continuing to look for employment. The evidence, which I credit,
is that the Union did not at any time maintain a list of any kind of who was or
was not employed and made no attempt to parcel out jobs.
It will be noted again here that the Jandel partner Andelman had sole and
exclusive charge and supervision of the shop and that he alone hired the shop
workers and handled all matters appertaining to shop personnel and operation.
According to Weinstein, when he first called at the Jandel place of business
the "middle part of May" 1949, Andelman "asked me what's my purpose" ; he
explained that he was "a furrier looking for work" ; Andelman "asked me how
do ,I stand with the'Union"; he told Andelman that "Mr. Smith has assured me
he will not have any objection and that he will issue me a card when I do get a
job," and Andelman "asked me as far as my background is concerned, and I told
him what it was and he told me that in a week or so he might be able to use me "
After "a week passed by" Weinstein called Andelman by telephone, and Andelman
said he "was not ready yet." Thereafter Weinstein made several more telephone
calls to Andelman' and sometime not fixed, prior to June 13 (a Monday),
Andelman told him that he (Andelman) "was going to give" him "a trial"' to
commence on that date.
4It is the custom in the fur industry that when , as in this instance , an applicant for
employment had not previously worked for the employer and the employer did not -know
his capabilities and the kind of work he could do, before accepting or hiring such applicant,
to give him a test or trial period of from a few days to a week , to determine whether he
could satisfactorily handle the type of work to which the employer intended to assign
him if hired. -
JANDEL FURS 1409
The shop was "upstairs" from the Jandel store. Weinstein says that when
be reported on June 13 to commence the trial period Andelman told him "there
was not enough room upstairs where the regular shop is and the only place
where he could put me . . . would be the basement but he expects the place to
be remodeled the coming year and that I will have more suitable quarters to
work if he finds me suitable for the job " Near the close of the fourth day of
trial work Andelman told Weinstein that when he "got through the day's work
to stop in and see him (in the store) upstairs," which Weinstein did. At that
time, Andelman told Weinstein that he believed that he (Weinstein) was "suited
for the job" and inquired "how much" he would "expect as salary." Weinstein
said that "at the previous place" he worked he was getting $125 a week. Andel-
man said he "would not be able to pay that kind of money" but was willing to
pay him $100 a week "and since there was a union contract negotiating if there
are any raises" Weinstein would "be eligible for that."' The foregoing is the
only reference that Weinstein stated, on direct examination, was made on this
occasion to the Union. Much later on cross-examination he said that at that
time Andelman "told me he was going to pay me the same, treat me the same,
as any one else that is working in the shop even though I am not a full union
member." Weinstein further says that "at the time" of the aforesaid conversa-
tion "Mr. Siegel was present. Mr. Siegel was at that time union chairman for
the shop,"' and that Andelman asked Siegel, "Will Mr. Weinstein be able to share
the work when it gets low," and that Siegel replied, "No, because it is the first
year, but the following year he will be able to divide the work with the rest
of them."
According to Weinstein the foregoing constitutes the hiring and what was
said at that time. Nowhere in Weinstein's testimony is any reference made
to any specification as to time or period for which he was hired. So far as
his testimony shows, nothing specific or of a direct nature was said about that.
However, it is, not so subtilely, implied that Weinstein was claiming that he
was being hired on a full-time, year-around, or some kind of permanent or
continuing basis as see Weinstein's claim that here in June 1949 Andelman
told him "the place" was "to be remodeled the coming year," as was done in
1950, and he (Weinstein) would then have "more suitable quarters" in which
"to work," and that Andelman inquired of the union steward, in substance,
whether Weinstein would be able to share in a division of the work during the
glow or slack season and that Siegel said he could not that year but could
the next. Weinstein has Siegel saying this although Weinstein was not at the
time even a member of the Union. Further it is apparent that Weinstein is
implying that somehow there was a connection and significance in the presence
of Siegel, who happened at the time to be the union steward in the shop.
However, Weinstein does not say that Siegel mentioned the Union or made
any inquiries of him as to whether he was a union member or had, or could
obtain, a work permit or temporary book from the Union, or anything of that
nature.
The testimony of Andelman about his first contact with Weinstein, and his
testimony and that of Siegel about the conversation attending the hiring of
5 Weinstein further testified in regard to salary :
I started out at $100 , and when the ( union ) agreement came through , the cutters,
got $5 .00 more, and Mr. Andelman gave me the $5.00 as retroactive pay and I got
$105 (a week) from the first day I started to work.
e Reference Is to Victor Siegel, "a fur finisher ," age 74 years , who has been a fur
worker for more than 30 years He is a year -around employee at the Jandel shop where
he has worked since 1944 , and In 1949 was union steward In that shop.
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Weinstein, which I largely credit, contradicts the testimony of Weinstein in
certain important respects, and discloses a much different situation than that
Weinstein would imply.
Andelman testified that when Weinstein first came to see him about a job which
Weinstein places at mid-May, that their conversation was in reference to where
Weinstein "had worked before and his general experience in the trade" and
"the type of work he could handle," and that he made it "perfectly clear" at that
time, and at all times thereafter, that any hiring to do the type of work Wein-
stein was fitted to do would be only seasonal and temporary and continue only
through the busy season. Andelman denied that he ever at any time asked
Weinstein how he stood with the Union, whether he was a member of the Union,
or had a union book or a union card or could obtain one. Andelman further said
that "the matter of unions" was not discussed "at all," that he is "sure" he
did not "bring up the subject of Unions" and does not "recall" that Weinstein did.
Moreover, Andelman said that he had never asked anybody he "hired whether
they had a union book or didn't have one," and unless the testimony of Wein-
stein in that respect be accepted there is no substantial testimony in the record
contradicting this-statement of Andelman. It will be remembered that Weinstein
did "not claim that either Andelman or Siegel at any time demanded, requested,
or made as a condition of employment, or going to work at Jandel's that he
have, obtain, or exhibit a card, temporary book, work permit, or clearance from
the Union.
Weinstein said that when prior to June 13 Andelman told him over the tele-
phone, on one of his numerous calls to Andelman, that he (Andelman) was
going "to give me a trial," he went to Smith and told him he "had a position,"
and that Smith told Helman "to give me a card," which "came along a few days
later." It was not claimed that this was done at anyone's demand, request, or
even suggestion. It appears to have been wholly on Weinstein's own volition.
As will be gone into later, prior to and at this time, Weinstein had pending,
according to his recital of his dealings with the Union, an oral application for
membership in the Union, at whose meetings he was a regular attendant. The
card Weinstein speaks of was a regular union dues book marked "temporary."
It bears no date of issuance and there is no record of the date of its issuance.
The first dues shown as paid are for the month of July. No dues were paid
for June. The custom of paying monthly in advance, and of those holding only
temporary books, who are usually in the position of applicants for membership,
paying dues only when working, and the fact that Weinstein paid in advance
for the whole month of January 1950, into which his job at Jandel's ran about
2 weeks, are circumstances indicating that this book was not applied for or
issued, as some of the union officers think is the fact, until about July 1. Be
that as it may Weinstein never at any time mentioned to Andelman that he had
obtained this book or exhibited it to Andelman, nor did Andelman inquire
whether he had obtained a book, card, or clearance from the Union. Wein-
stein said : "when I came to work 7 I had that book on me, and I believe I
showed it at that time to Mr. Siegel, who was the chairman of the shop." It
will be noted that Weinstein does not say that Siegel made inquiry or request
of him concerning a union book and isn't positive that he even showed the book
to Siegel. On the other hand Siegel, in whose testimony as a whole, based
largely upon my observation of him as a witness as well as the circumstantial
corroboration supporting it, I have the fullest confidence, said that he did not
at any time ask Weinstein if he had a union book, nor did he make such in-
quiries of any other temporary or seasonal workers, such as Weinstein, hired
7 Apparently meaning June 13.
JANDEL FURS 1411
at Janclel's from season to season and did not know whether they did or did
not have union books, and that he does not remember Weinstein ever at any
time showing him a union book.
I come now to Andelman's version of the conversation with Weinstein the
evening of the last day of the trial period when Weinstein was hired and how
and why Siegel by chance was present and what was said . Apparently Wein-
stein's first call at Jaudel's in mid-May looking for work was the first time
Andelman met Weinstein or heard of him. In the conversation about where
Weinstein had formerly worked it did not develop and Andelman had not pre-
viously heard that Weinstein had sued Cavalier. In the interim between that
date and the time he called Weinstein in for a trial period he chanced to learn
of the Cavalier suit through Sol Alpher, the attorney who was representing
Weinstein in the matter. Alpher was a personal friend of Andelman. I ob-
serve here that there is not a scintilla of evidence that in this interim Andelman
inquired of or consulted the Union, or any union officer, or any employer at
places where Weinstein had formerly worked, about Weinstein. Reverting to
the Cavalier suit, it was Andelman's concept of this suit that Weinstein, working
on a temporary basis, had been let out at Cavalier's, as was "normal" "when the
work ran out," and had then sued Cavalier "for a full year's work," that is, "year
around work." For this reason, and to avoid any "misunderstanding" or "any
complications whatsoever with" Weinstein as to the time for which he was hir-
ing him and the extent of the employment, which was only as "a temporary
worker until the end of the season" and that "arrangement should be crystally
clear and there should be no come back," Andelman called Siegel to hear and
witness the conversation with Weinstein relating to the terms and tenure of
employment. There was no prearrangement for Siegel to be present nor was
he called in the capacity of, or because he happened at the time to be, the union
steward in the shop. In this respect I would credit Siegel's testimony about
the occurrence, even if I did not, as however I do, credit Andelman's version.
As Siegel relates it, at the close of the day's work in the shop he came down the
stairs into the store on his way home. As he passed through the store, on his
way to the street door, he observed Andelman and Weinstein seated on a lounge
"having a conversation." As he was "passing by" them, Andelman "called me
over and told me, `Mr. Siegel, I am hiring Mr. Weinstein as a temporary for the
season.' Mr. Andelman told him `this is the price what I can pay you, and
whatever the raise through negotiation will be, you are entitled to the same as
the others.'" There is no variance about the basic wage agreed upon with any
increase which might be provided for by the union contract, then under negotia-
tion, to be added. Andelman says that it so happened Siegel conveniently came
by and had he not called Siegel as a witness to the hiring agreement he would
have called "somebody else to make sure that there was a witness to the con-
versation ." Siegel had never before been called as a witness to the hiring terms
of an employee, and the incident puzzled him. The next day he asked Andelman
why he had called him to be a witness as to the terms and tenure of. Weinstein's
employment, and Andelman explained that because of the Weinstein suit against
Cavalier, which was the first Siegel had heard of that, he wanted to avoid and
protect himself against any possibility of a misunderstanding as to the term or
period for which he was hiring Weinstein.
Both Andelman and Siegel testified , and I credit their testimony in that con-
nection, that nothing whatever was said about sharing or dividing the work.
While the flow of work is such during the busy season that there would be, and
was, sufficient extra work of the type Weinstein was hired to do, and fitted to
do, to keep him busy during the season there was not enough of that type of work
227260-53-vol . 100-90
1412 DECISIONS OF NATIONAL-LABORS RELATIONS ' BOARD
during the slack period to warrant hiring him, or anyone else, on a year-around
basis. As Andelman points out , there would have been no occasion for discussing
the sharing of work. The sharing or dividing the work, as generally understood
when those terms are used, refers to the custom of year-around employees shar-
ing the work during the slack season when and if the volume of work is not
sufficient to provide full-time employment at all times for all of them. It would
not have been a matter that would have been considered and discussed in con-
nection with the hiring of a temporary employee for the season only as clearly,
definitely, and specifically was the way Weinstein was hired. In the face of the
precaution Andelman took to make plain and specific that he was hiring Wein-
stein as a "temporary" and only for the season, I think it unlikely that there was
any discussion, as Weinstein claims, about him sharing the work.
I have dealt in detail on this matter of hiring Weinstein back in June 1949
because it tends to throw light on the events which resulted and occurred within
the 6-month period next preceding the filing and service of the charges and
relied upon the General Counsel to sustain the complaint, and also serves to
illustrate what I consider, based both upon my observation of Weinstein as a
witness and my close analysis of the whole evidence, a marked tendency on the
part of Weinstein throughout his testimony to state as facts self-serving inter-
pretations and conclusions about events and to embellish his statements and
interweave unwarranted implications, all of which combine to compel me, as
already indicated, to discount and be in doubt about much of his testimony vital
to and upon which the General Counsel's case depends.
E. The Jandel shop and Weinstein's work there
Respondent Jandel specializes in mink. Mink represents "over one-half" of
its retail sales, and the shop is "primarily a mink shop." The Company "buys
thousands of skins a year" and "is practically the only establishment in Washing-
ton that buys mink in all forms in such quantities." New mink garments and
pieces are made in the Washington shop and mink repairing, remodeling, and
restyling are done there. However, at times the Company is unable "to take
care of all" its mink work in its Washington shop and has some of it done in
New York. The Company also makes and sells fur garments and fur pieces
other than mink, principally Persian lamb, and does repair, remodeling, and
restyling work on fur garments and pieces other than mink. However, to hold
a regular or year-around job in the shop "a fur mechanic is obliged to know how
to do mink work." During the busy season the shop has "a surplus of work,"
principally repair, remodeling, and restyling. By "surplus" is meant "more work
than can be handled by the regular people in the place." Andelman stated that
prior to hiring Weinstein this "surplus work" during the season "was handled
by" a fur worker "employed" at some other shop "during regular hours," coming
into the Jandel shop "after hours" and putting "in extra time" there doing
`'repairs and remodeling." In view of this experience of having "somebody
working a lot of extra time during the seasonal months" on this surplus work,
Andelman decided in 1949 to try out the plan of using a full-time fur mechanic
during that season working "regular hours" to handle surplus work, principally
surplus repair and remodeling work. This was the seasonal job for which Wein-
stein was hired. Weinstein's experience in the trade, as related to Andelman
when he applied for work, and the'references he made as to the places he had
worked, indicated to Andelman that Weinstein had not had "any particular
experience on mink," nor did Weinstein "claim to be a mink mechanic." In hiring
him Andelman had in mind using Weinstein "primarily" on surplus repair,
remodeling, and restyling work other than mink as he understood Weinstein
JANDEL FURS 1413
"was not competent to handle" mink work. However, Andelman said "there
came a time when I did not have the usual work that I was giving him [Wein-
stein] and I tried him on some mink remodeling work. He showed such a lack
of understanding" of that kind of work, and his work on that job was so "un-
satisfactory I had to take it away from him and I never again gave him anything
on mink."
At the time Weinstein was hired, the Jandel shop had eight regular em-
ployees : 8 Pogostin, a cutter, Chasen, an operator, Elkins, a nailer, Migdol, a
fitter and designer, and Siegel, Kitty Krum, Josephine Downs, and a Mrs. Kramer,
all finishers. Weinstein was the first temporary or seasonal worker hired that
year. However, about the time Weinstein was hired two other temporaries
were employed, a Mrs. Porter and a Mrs. Foer, both as finishers. At all times
Jandel maintained a "mink set" in the shop. The members of the mink set were,
and were considered, regular, permanent, or year-around employees. A mink
set is composed of a cutter and one or more operators, preferably, in Jandel's
case, two or three operators. However, at the time Weinstein was hired, the
mink set was composed of Pogostin, as cutter, and only one operator, Chasen.
The same nailer, Elkins, was used for all types of work. In September or October
1949, Jack Dicker, a mink operator who had previously worked in New York
City, came to Washington. He did not leave New York because of lack of
employment in his line but for wholly personal reasons sought work elsewhere.
It is unquestioned that he is a highly competent and expert mink operator.
He works "exclusively on mink." Dicker came to the Jandel shop in September
or October 1949 "and asked for a job" as a mink operator. He told Andelman
where he had worked, his qualifications, and that he worked "exclusively on
mink." Andelman hired him on the spot and at once assigned him to the mink
set as an operator. Dicker was hired as a regular employee and not as a seasonal
or temporary worker.
Dicker was a newcomer in the Washington area. He came direct from New
York to the Jandel shop. There is no indication that he was ever admitted
as a member of the Respondent Local Union or that he obtained any sort of
working permit or clearance from it before going to work at Jandel's or at any
later time, or that his employment was conditioned upon his doing so, or that
anyone, either Employer or any union representative, made any demands upon
him in that respect.
It appears that during the 1949 season the Jandel shop workers did consid
erable overtime work. It is specifically mentioned that Weinstein, Dicker, Pogo-
stin, and Chasen did, and the implication is that most, if not all, did at least
some overtime work. Andelman had no complaint as to Weinstein's work and
deemed it "satisfactory within the limits on the type of work" he could do and
to which his assignments were necessarily "confined." Andelman said Wein-
stein "was a good worker within certain limits. I had to confine him to special
work."
F. Weinstein is terminated at the end of the 1919 season
As the 1949 season drew to a close, and shortly before the end of the calendar
year, two temporaries, Mrs. Porter and Mrs. Foer, were let out. Weinstein,
the third 1949 temporary, was continued on past the end of the calendar year,
which is considered the end of the season, for about the first 2 weeks in January
1950. This was because at the end of the calendar year Weinstein had certain
8 The term "regular employees" was used in the testimony, and is herein , as meaning
employed on a year-around basis or permanent employees as distinguished from temporary
or seasonal employees.
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfinished work on hand . No new work of any kind was assigned to him after
the end of the year. Weinstein said that he was continued the extra 2 weeks,
into January 1950, to enable him to finish some work assigned to him during
December which he had not completed. In this connection it is mentioned that
in December, presumably the later part, he was working on a garment, that the
material ran short, and it was necessary to send to New York to get "matching
material," and that Andelman told him when he finished that job, he (Andelman)
would not have any more work for him.
About his practice of hiring seasonal or temporary workers, Andelman testi-
fied that when, after the commencement of the season, "We need additional
help, we hire that help with the distinct understanding that it is temporary.
Otherwise it would deprive our regular employees of work that they are en-
titled to, and it is for this reason that I always make it clear and I never have
had any misunderstanding on account of that until this case."
Apparently the repair, remodeling, and restyling work diminished or becomes
progressively less as the season advances until it practically ceases. As such
work "runs out" and usually it begins to reach a low ebb at the Jandel shop about
Thanksgiving, the shop begins to convert to almost wholly mink work. Andelman
stated that around that time he starts "to giving the fur mechanics some new
mink work" and that "after Thanksgiving we start preparing for the [next]
spring season," that then the work becomes "practically all mink," and that
"between the end of December and the end of April" when the "regular people
begin taking their vacations, practically all" of the work is on mink. In this
connection Andelman said :
If Mr. Weinstein could have done mink work, I would have retained him as
a regular worker because when Mr. Weinstein left we had three people
[Pogostin, Chasen, and Dicker] working on mink and putting in many
overtime hours and an hour of overtime amounted to two hours of Mr.
Weinstein's pay, and it would have been more economical for me to retain
another employee on regular time to work on mink rather than pay people
overtime. But since he was not satisfactory at all on mink , I had to let
him go.
The pertinency of the foregoing detailed recital of the emphasis by the Jandel
shop on mink work and Weinstein's competency in that kind of work will become
apparent as the events upon which the alleged discrimination against Weinstein
is predicated are hereinafter approached and developed.
There is some difference about what Andelman said when he let Weinstein out
in January 1950, and in the interpretation of whatever he did say. Weinstein
seeks to imply that he was in effect merely laid off pending a "pick up",in the
work of the shop. This although there was at that time ample work on mink in
the shop not only to keep the regular force busy but to afford them overtime.
Weinstein seems not to consider his hiring, as clearly and specifically it was, as
being for the 1949 season only, as has been heretofore found. Nor does Weinstein
claim that Andelman promised to recall him when the next or the 1950 season
commenced, but rather that Andelman told him that "as soon as the work picks
up I will call you back." Asked if he complained about being let out while others
in the shop continued working full time and overtime, he said Andelman told
him "the circumstances are that I will have to let you go and that was all there
was to it," however, he shortly supplemented this statement by repeating that
Andelman said "as soon as the work will pick up he will gladly call me back."
At a union meeting, the installation of officers in February 1950, Siegel had a
conversation with Weinstein. In the course of that conversation Siegel inquired
JANDEL FURS 1415
of Weinstein, in substance, what, if anything, Andelman had told him about
working the next (1950) season, and Weinstein said "Mr. Andelman didn't tell
me anything." The substance of Andelman's testimony is that he told Weinstein
only if he needed him the next season he would "call him." Andelman said he
made no promise to Weinstein, and did not in any sense regard him as an employee
after he was let out in January 1950. I am satisfied in view of the care exercised
by Andelman in hiring Weinstein to avoid any misunderstanding, because of the
information he had received concerning Weinstein's differences with Cavalier
resulting in a law suit, that he did not at the time he let Weinstein out at the
termination of that hiring make any promises or commitments about hiring
Weinsein at some future date or at the commencement of the next season other
than if he needed him (Weinstein) he would let him know.
G. Dicker quits
Dicker, the only operator Andelman ever employed who worked exclusively
on mink, continued to work regularly until the end of February (1950) when
he got married, quit of his own volition, and went to Florida on a honeymoon
from whence he returned to, and resumed his trade in, New York where he
had formerly worked. He was not let out or laid off by Andelman and could
have continued working at Jandel's shop had he desired. After Dicker left
the mink set was composed of Pogostin and Chasen who continued working on
mink until the shop was closed at the end of May (1950) for the remodeling
work hereinafter described.
H. Weinstein's grievance against the Union about admission to full membersNp
The foregoing recital brings the more pertinent events to January 1950. I
digress now from the continuity to develop, to this point, the background of a
grievance which by this time had begun to build up in Weinstein's mind against
the Union, in the form of a belief that he was being unfairly denied full mem-
bership in the Union Whether this was more fanciful than real, nonetheless,
it ripened ultimately, as will later appear, into a conviction on the part of
Weinstein that for some mischievous reason or purpose, which is not at all
clear or apparent, the Union was deliberately engaging in some sort of scheme
or design not only to bar him from the privileges of full membership but also
to prevent him from obtaining a job as a fur worker in the Washington area.
I am constrained to observe here that, in my opinion, in view of all the evidence
which is supposed to have a bearing on the matter, Weinstein's belief in that
respect seems to have little, if any, support or foundation in fact.
I have noted that sometime in the fall of 1948, after Weinstein returned
from Baltimore to Cavalier's in Washington, a fellow fur worker at Cavalier's,
who was a member of the Union, told Weinstein "it would be nice if" he (Wein-
stein) "would go to the [union] meetings and try to belong there," that pur-
suant to the suggestion Weinstein commenced attending the union meetings and
attended regularly thereafter and participated therein, until after he filed
the charge herein against the Union on June 9, 1950. Weinstein said he saw
other fur workers at these meetings who were not members of the Union.
Weinstein testified that at one of these meetings in the fall of 1948, he "tried
to get a membership in the Union," that he asked Lerman, who was at that
time president of the Union, "to issue me a book," and that Lerman said, "we
can issue you just a temporary book" and referred him to Helman, the secre-
tary, that he spoke to Helman "about it" but Helman did not give him a "tem-
porary book" and "simply ignored me," and that at "probably the next following"
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting he again spoke to Heiman about a union book but "got no reply." I
have heretofore mentioned the custom or practice concerning eligibility for full
membership which had been followed by this Local over such a long period of
time as to come to have the effect of an unwritten rule, and the reasons under-
lying same, that to become "a full member," "a full fledged member," a fur
worker must first work a busy season and go through a slack season or slow
period in the Washington area. It will be recalled that Weinstein had first
come to Washington and commenced work here at Cavalier's about June 1,
1948, that he worked there only 3 days when he became ill and was incapacitated
for several weeks, that upon recovery he found the job at Cavalier's had
been filled, that about July 1 he went to Baltimore, where he worked at the
fur trade until sometime in September when he returned to Washington and
was reemployed at Cavalier's on September 13, 1948; thus in September, Octo-
ber, or November, 1948, whenever it was he made this application for full
membership in the Union, he had not worked in the Washington area so much
as the major portion of a busy season. Apparently Weinstein made no other
or further application for full membership until the fall of 1949 after he com-
menced working at Jandel's. At that time, in late September or early October,
he called Smith, who was then president of the Union, by telephone and made
an appointment to meet Smith. According to Weinstein, at the meeting which
followed, he complained to Smith that Pogostin, a full-time, year-around fur
worker at Jandel's and a member of the Union, "is cursing me and saying words
in Jewish which it means you will dearly pay for it because I work a little
bit over time." Smith advised Weinstein to "bring a charge against" Pogostin.
Weinstein said, "I am not a full member, and I don't believe I would have right
to bring a charge against a member." The conversation then apparently turned
to the period of time Weinstein had worked in the Washington area and Smith
expressed an opinion that such period might possibly then be considered suffi-
cient to meet the requirement of "a busy season and a slack season" and make
Weinstein "eligible for membership," and Smith told him "to come before an
Executive Board meeting" and present the matter. Within the same month
Weinstein did appear before the executive board. Weinstein's testimony about
this meeting was that, after questioning him, he was told to "step out" of the
room and "they would call" him back shortly and announce "the decision which
they did . . . and Mr. Weihmeyer [the chairman] said that at this time we
can't take you into the Union, but we will take you in later." When Weinstein
argued the matter further he was assured by Smith, "you will get your
membership later."
The credited testimony of the union officers and the facts about the relation-
ship between Weinstein and the Union and union officers and members to
this point, heretofore set out, indicate, and I am of the opinion, that the refusal
to grant Weinstein full membership at that time and previously was not motivated
by any personal or discriminatory considerations or animus, as seems to be
intimated, but solely by the way the union committee and officers applied the
test of whether Weinstein, a newcomer in the area, who had come and gone
and returned, had been in Washington and worked here a sufficient time and
the full seasons to establish himself as eligible, according to their recognized
standard, for a full membership. It will also be remembered that to this
point in time Weinstein had worked 31/2 months in 1948 at Cavalier's, without
a temporary book, and since about June 13, 1949, at Jandel's during which he
had a temporary book, and that he had not at any time since coming to Wash-
ington encountered any interference or obstruction from the Union or its
officers or members in obtaining or holding a job nor does he make any claim
JANDEL FURS 1417
to that effect but, on the contrary, he had freely mingled with them and regularly
attended and participated in union meetings, held a temporary book, had been
received and treated as a fellow fur worker, and had been assisted and aided
by union officers and members in finding overtime work. I am satisfied that
the Union intended, in good faith, to grant Weinstein full membership when
and if he remained and continued working in Washington for the full time
which, according to their reckoning, would make him eligible for that type of
membership.
1. Teinstein's claim that in the spring of 1950 he was promised a job at Jandel's
that at sometime which, as stated, does not appear to this point, Andelman
terminated the employment of Weinstein, which definitely had been only for
the 1949 season, he did not make any commitment or promise to Weinstein about
hiring him or recalling him at some future time or for the next (the 1950)
season. The alleged discrimination against Weinstein purportedly stems from
the hiring by Andelman in 1950 of Benjamin Friedman. Weinstein says, and
apparently the General Counsel's case in this respect rests upon the theory,
that at sometime which, as stated, does not appear to this point, Andelman
promised Weinstein a job, presumably of a temporary nature for or during the
the 1950 season, as clearly Weinstein was not qualified to hold a regular or
year-around job at Jandel's, but that at the demand of and yielding to pressure
by the Union on behalf of Friedman and against Weinstein, because Friedman
was a union member and Weinstein was not, and although he desired and
preferred to hire Weinstein, Andelman instead hired Friedman and refused
and failed to carry out his promise to hire Weinstein.
When then, if at all, did Andelman promise to give Weinstein a job for or
during the 1950 season? It seems to be implied by Weinstein's testimony about
conversations he claims to have had with Andelman during February and
March 1950 that, when pieced together, the statements he attributes to Andelman
compose or constitute some kind of a promise to employ him for or during the
1950 season, which promise was not carried out because the Union pressured
Andelman to employ Friedman in his stead. In this connection Weinstein said
that he met Andelman "casually" at the Jewish Community Center in Washing-
ton, once in February and once in March 1950, that on the occasion of the Febru-
ary meeting he asked Andelman, "How is business" and Andelman replied "Slow,"
and that at the time he met Andelman at the Community Center in March
lie asked Andelman, "When am I coming back to work," and Andelman replied,
"that presently, it is slow and as soon as it will pick up he will call me."
Weinstein said that he next encountered Andelman in the latter part of March
at the Festival of Jewish Songs at Constitution Hall in Washington, that on
that occasion he asked Andelman, "How is business, whether it is picking up,''
and that Andelinan, "told me why don't you stop down at the store." Ap-
parently this last statement which Weinstein attributed to Andelman, when
viewed in connection with Weinstein's testimony concerning Andelman's pur-
ported statement in the earlier part of that month at the Community Center,
is supposed to indicate that Andelman's purported invitation or suggestion that
Weinstein "stop down at the store" related to at least the possibility that
Andelman might have some work for Weinstein. However, Weinstein said that
he did not go to the store inquiring for work, pursuant to Andelman's suggestion
at the Constitution Hall meeting, until April 29, approximately a month later.
At that time, according to Weinstein, he asked Andelman "whether he has
work for me," that Andelman said, "if this weather keeps up" Weinstein "might
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be able to put in about two weeks" before remodeling work commenced at
the shop which would close it down for 6 or 8 weeks , and that at that time
Andelman further said : "Weinstein if I have it I will call you," and thereupon
told a "salesgirl to take the telephone number from Mr. Weinstein so you can
let him know ." It does not appear whether the weather continued , and although
Weinstein said Andelman told him at the Community Center early in March
that "as soon as" business picked up he (Andelman ) would call him and
again told him on April 29 that he would call him if he had any work for him,
Weinstein said , and Andelman concurs, that Andelman never at any time
called him about coming to work.
Taking the foregoing testimony of Weinstein at full face value , it boils
down to about this, at most , that Andelman told Weinstein that if he had
any work for him, apparently meaning, in the light of his former experience
with Weinstein, surplus work of the kind Weinstein could do, he would call
Weinstein for a short period of temporary work as Jandel planned to shut
down the shop in May for an extended period for repair and remodeling work.
Andelman said that he "frequented " the Community Center and may have
met and exchanged greetings or spoken with Weinstein there, but he does
not recall any specific conversation with Weinstein to the effect that he would
call Weinstein to come to work when business picked up and that he "had
no reason for telling him that," and that he did not at any time, at Constitution
Hall or any other place, after Weinstein 's 1949 seasonal employment was ter-
minated in January 1950 , suggest to Weinstein that he come to the store or
invite him to do so in connection with putting him back to work, nor did he say
anything to Weinstein about "using him" or "seeing" if he could use him, or
about calling him to come to work , or anything to that effect . Andelman said,
however, that after January 1950 Weinstein did come to the store several times
inquiring for work but that at such times he told Weinstein he "had nothing for
him to do," nor could Andelman recall any such incident as Weinstein mentions
concerning directing a salesgirl to note Weinstein 's telephone number so he
could let Weinstein know if he should have any work for him. However, it
will be remembered that Andelman had told Weinstein when he terminated
Weinstein 's 1949 seasonal employment that if he needed him at any time in the
future he would call him.
While it may well be that at some of these casual meetings which Weinstein
mentions , Andelman may have made some remark which Weinstein thought,
construed , or interpreted as indicating that Andelman might at some later date
have some work for him , nonetheless I'am inclined to credit Andelman 's testi-
rnony as more likely or probably representing the real facts of the situation dur-
ing this period of time to which the foregoing testimony relates, and one reason
for this conclusion has already been touched upon , that is, the then impending
plan to close down the shop for an extended period . At the times mentioned
Jandel had already adopted a plan to remodel the shop and the store. It was
contemplated that the work would begin in May ( 1950 ) and would necessitate
a complete shutdown of the shop , the layoff of all shop workers while the repair
and remodeling work was in progress , and moving the store to an adjacent room.
It was estimated that the remodeling work would require about 2 months but
it extended over a period of nearly 3 months. The remodeling work commenced
about the "middle of May" but work continued in the shop until near the end
of May when the shop was shut down , all shop work ceased , and the regular shop
force was laid off pending the remodeling work which was not completed until
the second week in August when the regular shop force was recalled . The season
does not start at any of the shops until about May at the earliest, and normally
JANDEL FURS 1419
at Jandel's about June, so it seems, in view of the contemplated shutdown, most
unlikely that in February, March, or April, Andelman would have made any
engagement or commitment about hiring any temporary or seasonal workers for
the 1950 season, and it is improbable that at any of the times Weinstein mentions
Andelman indicated to Weinstein that he had, or might have, any immediate
work for him since that was during the period when the shop was ordinarily
operated with only the regular, or year-around, workers. I am constrained to
find that upon the evidence bearing upon the matter, considered as a whole, that
to and including April 29, 1950, when Weinstein says he went to the store to see
Andelman, no promise, commitment, or agreement had been made by Andelman,
or existed, to give Weinstein either immediate work or a job for or during the 1950
season , or certainly as has been noted, and apparently that is not even claimed, a
year-around or full-time job.
J. Friedman is hired
It is at about this point, around the first of May (1950), that Friedman came
on the scene and the events and circumstances giving rise to this proceeding
commenced. The testimony of Andelman and Smith, who was president of the
Union at the time, is all and the only direct testimony concerning Friedman's
application to Andelman for a job as a fur mechanic or worker in the Jandel
shop, and how and why Andelman hired him, and the circumstances immediately
surrounding and attending his employment. In addition, Weinstein testified to
purported numerous and varied statements which he says Andelman made con-
cerning the hiring of Friedman, both in private conversation with him and at and
in the course of numerous conferences which followed the filing of the first charge
herein by Weinstein. Friedman did not testify. A subpena for his appearance
was sent by registered mail from Baltimore, Maryland, on April 12, 1951. The
return receipt shows it was received at the Friedman home in Hyattsville, Mary-
land , on April 16, the date the hearing commenced. Friedman was a regular or
year-around employee at the Jandel shop. It will be remembered that it was
customary for these employees to take their vacations in April and May. Prior
to the arrival of the subpena, Friedman had left Washington on a vacation. It
was stated that Friedman had not personally received the subpena at the time
tine hearing commenced, and although the hearing was not closed until May 17,
no further effort was made to procure his attendance. It was stipulated that no
adverse inferences against either the General Counsel's case or that of the Re-
spondents ' were to be drawn by reason of Friedman' s absence , or the failure of
any of the parties to call or produce Friedman as a witness, or to insist that his
testimony be taken.
The account which follows is a composite of the credited testimony of Andel-
man and Smith. As to what was said and done in connection with the hiring
of Friedman, their testimony stands uncontradicted, and I find nothing of sub-
stance developed or appearing in the cross-examination, or in the circumstances,
or upon an evaluation of the whole testimony, which tends materially to im-
peach or discredit it.
In May 1950, the first part of that month, Friedman came into the Jandel
shop seeking work . He came alone . Andelman had not previously known or
met him . Friedman told Andelman he was "out of work" and "would like to
get a job" there. He did not say "how he happened to come" to the Jandel
shop, but other testimony indicates that Friedman had learned about Dicker
quitting and, being a competent and experienced mink operator himself, went
to the Jandel shop to investigate the possibility of getting the job which Dicker-
had held there. Friedman told Andelman his qualifications , that he was an "all
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
around" fur worker, that he "had done a considerable amount of mink work and
felt that he could suit" Andelman and the Jandel shop, and asked that he be
given the customary trial period to demonstrate his capabilities. Andelman did
not dismiss Friedman's application for work on the ground that he could not
use him or did not need another fur mechanic who could do mink work. The
whole tenor of Andelman's testimony about the nature of the work in the Jandel
shop and the considerations which eventually prompted him to hire Friedman
discloses that if Friedman could competently do mink work, as he represented
he could, and other types of fur work as well, he would meet the need of the
shop for another year-around fur mechanic as the departure of Dicker left only
one operator, Chasen, on the mink set, and ordinarily during that period of the
year, the shop was working almost full time on new mink work, heretofore de-
scribed, and more than one mink operator was needed. However, due to the
fact that the shop was presently to be shut down for an extended time while
remodeling and alteration work was in progress, Andelman, after advising
Friedman of the contemplated shutdown, told him that he felt "he might be the
right person for us" and to come and see him when the shop was reopened and
work resumed after the alterations were completed at which time he would
give him a trial. Bits of testimony here and there indicate that the con-
versation between Friedman and Andelman was somewhat more extensive
than my recital here reflects. Apparently Friedman, either in the first instance
or in response to Andelman's inquiries also told Andelman where he had pre-
viously worked both in Washington and New York, where he had done mink
work in some of "the better houses," and the various kinds of fur work lie had
done, particularly stressing his experience in mink work which it appears had
been considerable.
Whether Friedman asked Smith to see Andelman in his behalf, and Smith
did so in his capacity as president of the Union, or merely because they were
friends of long standing, had worked together, and Smith well knew Friedman's
abilities particularly in mink work, which everyone connected with this case
seems to recognize was and is a first and controlling consideration for full-time
or regular employment at Jandel's, is nowhere in this evidence made clear.
However, we may assume that both considerations were involved to the extent
that by virtue of the fact that Smith was currently president of the Union, it
was thought that his recommendation might have greater weight. It seems a
reasonable inference, from the testimony about the matter, that Smith had no
prior knowledge of Friedman's intention to apply to Jandel for a job and that
the first information he had concerning the application was when Friedman came.
to him, told him he had been to see Andelman about a job in the Jandel shop,
and asked Smith to make a recommendation to Andelman in his behalf. I do
not find, as apparently the General Counsel contends, that Smith's action in going
to see Andelman on behalf of Friedman was, in its original intent, a union en-
terprise. Whether it can be said that the Union later intervened depends upon
the interpretation made of the evidence about what occurred. However, I do
not believe or find that Smith, assuming that at the time he was acting for the
Union, did anything constituting or amounting to a violation of the Act in recom-
mending Friedman to' Andelman and requesting, as he did, that Andelman giN e
Friedman a trial.
A "few days" after Friedman's call on Andelmani, Smith, pursuant to Fried-
man's request, went to see Andelman. In calling on Andelman, Smith did not
have in mind that a choice between Weinstein and Friedman was in any way
involved , as a matter of fact was not the case. Smith said he knew that
Weinstein was not working there at the time , but did not know "whether he
JANDEL FURS 1421
(Weinstein ) was coming back or not " He also well knew that Jandel was
primarily a mink store and that Dicker, who had worked exclusively on mink,
had left. He, therefore , thought Jandel would have need of another fur opera-
tor who could do mink work as Friedman was qualified to do. Smith felt that
it afforded a good opportunity for Friedman to get a steady or year-around job
since, as Smith, in substance , puts the matter , Dicker was a "high priced" mink
expert who restricted his work exclusively to sewing mink while in Friedman,
Andelman "could get a man who could both cut and sew mink," and could and
would do other types of fur work as well, "for possibly less" than he had paid
Dicker. As it turned out, that was indeed the very kind of an operator Andel-
man needed and wanted. When Dicker left, Andelman decided he would not
replace him with an operator whose work was restricted exclusively to sewing
mink. He wanted instead, if he could find such, an operator who could do any
kind of mink work and fill in on the mink set, and who in addition could and
would also do other types of fur work, including remodeling , repair, and altera-
tion work on types of fur other than, as well as, mink. Such an operator was
needed and could be used as a year-around , or regular , employee . As has been
heretofore noted , Andelman did not consider Weinstein satisfactory for or quali-
fied to do any kind of mink work.
On this occasion, Smith told Andelinan "that he knew Friedman had applied
for a job" in the Jandel shop, that he had at one time worked in the same shop
with Friedman , and mentioned other shops in both Washington and New York
where Friedman had worked , including mink work , that he considered Friedman
"a very good mink mechanic" and "knowing the reputation " of the Jandel firm
"with respect to mink" he "felt" Jandel "could use" Friedman and that Fried-
man would "suit the place," that Friedman "was out of work and had just
gotten married and needed a job, " and asked Andelman to give Friedman a
trial. Andelman then explained to Smith. as he had to Friedman, that 'while
the alteration and remodeling work, which was to begin shortly, was in progress
"the shop was going to be idle" and "there would not be any work anyway,"
and that he would give Friedman a trial when that work was completed and
the shop reopened . Smith then pointed out that there was sufficient time before
the shop was to be closed down for Andelman to give Friedman the customary
2-week trial, and to determine and decide for himself what Friedman could do,
and what his qualifications were. Smith urged that it was "only fair to give
Friedman a trial, and if he did not" demonstrate in thaf trial period that he
would be fit for the job, then there would be "no reason for Friedman to expect
that he would get a job at Jandel's" and the "whole matter would be closed."
Andelman says Smith 's argument "convinced me" that "it was only fair" to give
Friedman an immediate trial and he "was in a position to do it" so he called
Friedman "in for a trial of two weeks."
During this conversation , Smith made no reference to Weinstein until after
Andelman injected Weinstein 's name into the conversation . Smith had no oc-
casion to do so, for in going to see Andelman he had no thought of the possi-
bility of any conflict between Weinstein and Friedman . As noted, Smith
thought the departure of Dicker made it likely that Jandel would need another
operator who could do mink work and had that in mind. Andelman , however,
mentioned to Smith that in employing additional help if he "couldn't find any-
body better than him" he would "give Weinstein first consideration . . . because
he had already worked in the place ." To this Smith stated that he was sug-
gesting Friedman "to take the place of Mr . Dicker," and that since Andelman
"was enlarging his place" he "could use both" Friedman and Weinstein. Dur-
ing this phase of the conversation Smith urged that if there was only one job
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to be filled, and it became a matter of choice between Weinstein and Friedman,
that Friedman had lived and worked in Washington "a longer time" and "was
a long time member of the Union" and he felt "in all fairness he should be given
preference in employment" but "the least" Andelman "could do," and all he was
asking him to do, *as "to give Friedman a trial" and "see" for himself
"whether he (Friedman) was suitable in Dicker's place because" he "knew that
Jandel had need of another mink man," and that if, after a trial, Andelman
was not satisfied as to Friedman's qualifications for the job that, of course,
would end the matter. This was in accordance with the practice and custom
in the trade.
Smith did not talk with Andelman again about Friedman until after the trial
period and an agreement on terms between Andelman and Friedman had been
made. In fact the indication is that the only subsequent conversations in relation
to the hiring of Friedman, in which Smith participated, were those occurring in
the various negotiations and conferences which followed the filing of the first
charge herein by Weinstein. In response to the General Counsel's questions along
that line, Andelman said that Smith at no time mentioned or referred to the con-
tract Jandel had with the Union or demanded that by virtue of that contract, or
even at the behest of the Union, he should or had to hire Friedman, or make any
threat or suggestion of union action if he did not, and that Smith merely recom-
mended Friedman as a competent all-around fur worker who could also do mink
work, in which Smith said Friedman had had considerable experience and as
being "suited" to that shop, and asked that he be given a trial period.
When Andelman called Friedman in for the usual 2-week trial "there was just
about two weeks left" before the shop was scheduled to close down. During this
test or trial period, which began on May 15, and ended on May 26, (Friday)
1950, Andelman, being particularly interested in Friedman's purported ability to
do mink work, tried him out on a considerable amount of that kind of work.
Andelman said that from this trial he found Friedman to be "an all around fur
worker," who could handle all types of fur work, do all kinds of remodeling,
restyling, alteration, and repair work, also that he was a competent mink
operator. Further, Andelman said, that as a result of the trial he was convinced
that Friedman was qualified to hold a steady or year-around job, and when the
shop was converted to almost wholly making new mink pieces "I knew he (Fried-
man) could fit in very-well as another [mink] operator and continue working as
part of the mink set."
At the conclusion of the trial period, Andelman told Friedman that "he was
satisfactory to the place" and "asked him what salary he wanted." Friedman
said he wanted $115 a week, that "he had been getting that" and "in his opinion"
that wage was "not too high." Andelman "agreed with him" and "paid it with-
out argument." This was $15 a week less than the basic wage Andelman had
paid Dicker, who received $130 a week as a basic wage, and $10 a week more
than the basic wage he had paid Weinstein. Pogostin, the cutter, was the highest
priced worker in the shop with a basic wage of $140 a week. Friedman could
both cut and sew mink, as Smith had represented to Andelman, and since his
employment at the Jandel shop has done some cutting, but Pogostin "is the regu-
lar cutter" and does "more cutting than" Friedman. Asked why he agreed to
pay Friedman $10 a week more than he had paid Weinstein, Andelman said that
he felt the additional $10 in basic wage was fully justified by Friedman's all-
around superior qualifications and competency and his ability to do mink work,
which Weinstein could not do, and to work the year around for which Weinstein
could not qualify. Asked if the Union had anything to do with "setting Mr.
Friedman's salary," Andelman said the Union never at any time "had anything to
JANDEL FURS 1423
do with setting anybody 's salary" at Jandel's, except to the extent that minimum
wages were fixed by the union contract , but that he is the sole judge of what
wages Jandel pays in excess of the contract minimums . It is noted , for instance,
that the minimum fixed by the contract for an operator was $65 a week and for
a cutter $80 a week, while Jandel paid Pogostin , a cutter, $140 a week, and
Dicker , a mink operator , $130 a week . Andelman did not discuss Friedman's
wage with Smith nor any other officer or representative of the Union.
Andelman said, and I credit his testimony in this respect, which is consistent
with the over-all facts and circumstances of the whole situation , that he hired or,
as he puts it, "engaged" Friedman "strictly on ability" and his competency to do
the kind of work predominating in the Jandel shop as demonstrated by the trial
period. In this connection , Andelman stated that the fact Friedman was a
member of the Union , and that Jandel had a contract with the Union , had nothing
whatever to do with his decision to hire Friedman , and that while he had "proper
regard" for Smith 's recommendation , had Friedman's trial not borne out that
recommendation and demonstrated his qualifications and suitability for the kind
of work done in that shop he "would not have engaged him," and that he "most
definitely would not have hired Friedman on Smith's, so to speak, urgency,"
but did give Friedman a trial "after Smith spoke" to him about it and "recom-
mended" Friedman , and that his decision to hire Friedman was made "on the
basis of the trial" whereby he determined for himself "the type of work he
(Friedman ) could do."
Andelman testified that had he tried out'Friedman , upon Friedman ' s request
for a trial , when he first came to the shop seeking work , and before Smith came
to see him or made any recommendations or requests in Friedman 's behalf, after
such trial , which would have demonstrated , as did the trial later given, Fried-
man's all-around fitness for the type of work done there he would "definitely,"
then and there , "have engaged Friedman just the same ," that is, upon the trial
alone without any recommendation from Smith or anyone else.
While Andelman could use and needed another operator who could do mink
work , he had decided "not to again employ a man of Dicker's type who specialized
only in sewing mink," and "thought" if he could find a fur worker who could
do all types of fur work , including mink , and fill in on the mink set, such a person
would "fill the bill" and give him another year-around worker. The trial demon-
strated to Andelman 's satisfaction that Friedman could meet these requirements.
Asked about the possibilities for the employment of Weinstein at sometime
during the 1950 season had Friedman not been employed Andelman said, in sub-
stance, and his testimony about this appears to be supported by what has gone
before and by the circumstances indicating his manner of operation generally,
that had Friedman not applied for work and been found satisfactory and hired,
and if, when the shop was reopened after the completion of the remodeling work,
the work had gotten "heavy" and he "could not get anybody else more suitable"
he "might have recalled Weinstein on the basis that he had worked there last
season ," which , it follows , would have been as a temporary employee since it is
quite clear that Andelman could not use Weinstein or anyone else whose quali-
fications were so limited as a permanent or year-around employee.
It hardly seems pertinent to the issues but what appears to be a purely hypo-
thetical question was put to Andelman that assuming Weinstein and Friedman
possessed equal qualifications and suitability for the kind of work done in the
Jandel shop, and it was a matter of choosing one or the other for a job there,
which would he have employed . Andelman said that under such circumstances
he "would have given Weinstein first consideration because he had worked
in the place before ." Such evidence in this record , if any, tending is the least to
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
show Weinstein possessed qualifications equal to those of Friedman must be
found in the testimony of Weinstein alone, and is so scant and feeble as to be
entitled to but little if any weight , and is overcome by the overwhelming pre-
ponderance of the direct testimony and the facts and circumstances to the con-
trary and the opposite. The difference in competency and suitability between
Weinstein and Friedman was not only demonstrated by Friedman's performance
in the trial period but accentuated in the course of his subsequent employment.
I note here that Friedman was employed on a year-around basis and had been
continuously so employed to the time of the hearing. It has already been men-
tioned that Andelman , after once trying Weinstein on mink , did not thereafter
give him "any mink work . . . because he was not competent to do it" and was
compelled to limit Weinstein 's assignment to only certain types of work which
he could do . For the same reason Andelman could not retain Weinstein after
the shop converted to working almost overwhelmingly on new mink garments
or pieces . On the other hand , Friedman could do any work there was to be done
in the shop , and since Friedman has been working there , he has done some of
the work Weinstein did in the 1949 season and some of the work Dicker, the
mink specialist , had previously done and also whatever work of any type that
"came into the place."
K. Events immediately preceding , and the filing by Weinstein of a charge against
the Union alone
As mentioned , about the "end of May" (1950 ) the shop was closed and the
shop employees laid off pending completion of the remodeling work. Weinstein
had last, prior to the shutdown , called there on April 29 . Weinstein 's next call
on Andelman , as he fixes the, time , was "the latter part of May " after the shop
had been closed down. If his estimate of the time is correct , it must have been
during the last 2 or 3 days of May because there is testimony that the shop was
working as late as Friday , May 26, the last day of Friedman 's trial period. On
this occasion , Weinstein and Andelman went to lunch together at Sholls Cafe-
teria near the temporary store quarters . Apparently Weinstein had heard that
Andelman had hired Friedman , and that was one subject of the conversation.
Weinstein reports that conversation as follows :
Mr. Andelman . . . has told me that the Union is insisting upon hiring Mr.
Friedman, and they object to calling me back to work . He said Mr . Friedman
came, I believe with someone else, and the only thing, he [Andelman] says,
I can advise you is to see Mr. Smith as he is the only man that can consent me
going to work as it was promised by Mr. Andelman . . . . he [Smith] would
be the only one that has the power , and the only man to see , and that would
be Mr . Smith.... He [Andelman ] told me that under the pressure that
they put on him he had to have Friedman just for a trial period and not
only that, he said I have to pay him more than I have paid you. . . . He
said the shop is going to be closed anyways, and by me going and seeing
Smith that maybe I will be able to straighten it out, so Mr. Smith will have
no objection of me going back to work for him.
Andelman was not called upon to relate this conversation consecutively or
as a whole . His statements about it were- in response to specific questions con-
cerning various statements made by Weinstein about the conversation. In
response to these questions , Andelman said , in -substance : "I did not mention
the Union in connection with the hiring of Friedman or tell Weinstein that the
Union had anything to do with it; it was Weinstein who brought up the subject
of the Union " ; he (Andelman ) "definitely" did not tell Weinstein that because
JANDEL FURS 1425
of the insistence or at the demand of the Union he had to pay Friedman $115
a week, and such was not a fact as the Union had never at any time made any
demand upon him, or had anything to do with fixing the wage or salary which
he paid any employee in excess of the minimum wage fixed by the contract;
when the matter of Friedman's wage was touched upon, he frankly told Wein-
stein that the reason he had agreed to pay Friedman $10 more a week than he
had paid him was that Friedman was a more competent fur mechanic, could do
mink work, which Weinstein could not, and "could hold a steady job while
Weinstein could not" ; Weinstein blamed the Union for his difficulties and
launched into "a long story . . . of the grievances he had" against the Union "and
all the other things," and that it was at that time he advised Weinstein "to get
straightened out with the Union" but he did not mention Smith in that connec-
tion nor did he say anything about Smith having any "power" in connection with
hiring at the Jandel shop; he told Weintein he thought it was better not "to
aggravate" the matter more, and that in his own "dealing with unions" he had
found the Union here "rather reasonable" ; after hearing Weinstein's complaint
against the Union, he "sympathized" with Weinstein's "position in the city" as
he had depicted it, and he told Weinstein he "thought he could help him by
,keeping him, so to speak, in a position" to effect a "settlement" of some kind of
his difficulties with the Union, of which Weinstein had spoken, and get the
membership question settled, and the benefit and assistance of the Union in
finding a job in Washington.
-As lending moral support to Weinstein's position in his effort to get his
difficulties with the Union settled, Andelman said he told Weinstein that he
would temporarily hold off calling Friedman in. This last I do not understand,
and it tends to create some question in my mind as to just what was said and
by whom in this conversation.
While some portions of Andelman's testimony about this conversation leaves
some shadow of a doubt as to what he meant and the import of what he did say,
I have a very considerable doubt about the accuracy of Weinstein's version as
a whole. Practically all of these purported admissions and statements by
Andelman found in Weinstein's testimony about this conversation are contrary
to the realities as disclosed by the facts and circumstances in evidence bearing
upon the Jandel shop operation, and the hiring policies and practices there, even
the hiring in 1949 of Weinstein himself, and the credited testimony and evidence
does not support the proposition that Andelman had "promised" Weinstein a
job for the 1950 season. According to Weinstein's own testimony, the most
Andelman had promised was that if he needed him he would call him. I am
unable, therefore, to accept Weinstein's version of this conversation as being
literally correct or as correctly reflecting the real substance, effect, or meaning
of what was said. It is my opinion, based upon my observation of Weinstein
throughout his lengthy and detailed testimony, and also taking into account his
manner of speaking and of so linking his ideas, opinions, and beliefs with pur-
ported matters of fact, that it is well nigh impossible to unscramble and separate
them and ascertain which is which, that this is but another example of his
tendency, whether conscious or unconscious I do not undertake to say, to state
as facts and attribute to what Andelman said the meaning which he himself
placed upon events and occurrences, and the purpose and effect thereof, as
concerned himself, which he suspected.
A significant circumstance further tends to impeach and detract from the
accuracy of Weinstein's version of the conversation at the Scholls Cafeteria,
and to some extent corroborate the general tenor ' of Andelman 's testimony con-
cerning what he said on that occasion . Weinstein said that pursuant to Andel-
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
man's suggestion, which was, in brief, as Weinstein had put it, that he see
Smith, who was "the only one who has the power," and ask Smith to permit
Andelman to hire him, he did see Smith "maybe in a week or days" after that
conversation. This appears to have been sometime around June 2, 3, or 5.
Weinstein purported to relate the conversation between him and Smith on that
occasion. He said : "I told Mr. Smith whether I am eligible, whether they would
give me that full Union book that had been promised to me previously. Mr.
Smith said, as he said on previous occasions, 'I can see no reason why not. The
Executive Board meets next Wednesday, come up to the Executive Board."' It
will be noted that nothing was said about employment of Weinstein at the Jandel
shop, or obtaining Smith's approval or permission thereto, or the hiring of
Friedman, or any of the matters about which Weinstein said Andelman advised
him to see Smith. On the contrary, the conversation had wholly to do with
Weinstein's standing application for full membership in the Union which was
one subject of the grievances against the Union which Andelman said Wein-
stein had related to him at such length, whereupon he had advised Weinstein to
see the union officers and see if he could get the matter straightened out, and
had offered to help Weinstein in getting it settled.
Weinstein said that he went to the executive board meeting as Smith had
suggested, and that the meeting was on June 7. The following excerpt from
Weinstein's testimony is all that the record shows as to what occurred on that
occasion : "I came to the meeting, and the chairman of that meeting . . . said,
'I believe Mr. Weinstein, you come here for something, so will you please state
of your coming in here.' So I answered that I came here as a book has been
promised on previous occasions and I came here to get my full book." It does
not appear what further was said or done by anyone at this meeting. Two days
later, June 9, 1950, Weinstein filed the first charge herein against the Union
alone but, although presumably the facts which are now supposed to constitute
unfair labor practices on the part of the Company then existed and were equally
available at that time, the charge against the Company was not filed until August
10, 1950, 2 months later.
L. Series of conferences which followed the filing of the charge against the Union
At this point in the chronology of the events a series of conferences com-
menced, the purpose or intent of which seems to have been to explore the possi-
bility of a settlement of the controversy precipitated by the filing of the charge
against the Union. Much of the testimony about what was said at some of these
conferences has but slight if any pertinency to the issues herein.
In June, apparently shortly after the filing of the charge, Mr. Humphrey, a
field examiner and agent of the Board in charge of the investigation of the mat-
ter posed by the charge filed against the Union, called at Jandel's temporary
store quarters and interviewed or interrogated Andelman and another partner,
Silberman. However, the interrogation seems to have been almost wholly con-
fined to Andelman, who, of course, was the principal in the events about which
Humphrey was seeking information. Humphrey told Andelman and Silberman
that a "complaint" had been made to the Board about the hiring of Friedman.
There is little substantive evidence as to what was said on this occasion. About
the only evidence concerning this interview is that developed by a series of
questions propounded to Andelman by the General Counsel as to whether, on that
occasion, he had told Humphrey certain things set out in the questions, as
"Didn't you tell Mr. Humphrey that Mr. Smith came in your shop and threatened
to take the shop down and call a strike if you didn't employ Friedman?" An-
swering that question. Andelman said that he did not say "anything at all" to
JANDEL FURS 1427
Humphrey to that effect. To another similar question , he said that he "did not
say anything" to Humphrey about Smith making "threats." Asked if he had
told Humphrey that he intended to call Weinstein back "but the Union would
not let" him do so, Andelman said he had not told Humphrey that. One other
of these questions was, "Do you remember telling Mr. Humphrey that the shop
steward told you that the Union would not let you work Weinstein and that you
had to work Friedman?" Andelman answered, "No I did not tell him that. The
shop steward never told me that and I certainly would not have told it to Mr.
Humphrey " The foregoing are examples of this line of questioning. Humphrey
did not testify and there was no testimony offered to support the implication
that Andelman had made any such statements to Humphrey or to refute or
impeach his denial. There is no substantive evidence that any of these things
occurred or that Andelman told Humphrey they did. Certainly neither the
content nor the implications of these and similar questions, which were met
with a denial by Andelman, constitute evidence. Andelman said during this
conversation' with Humphrey he expressed his sympathy for Weinstein in his
trouble with the Union, and told Humphrey what Weinstein had related to him
about that in their conservation at Scholls, and thinking that Humphrey "was
going to use his best offices to settle this thing amicably" told Humphrey he
"would cooperate in every respect" even by not calling Friedman to work "until
this thing was.settled."
Although Weinstein did not file a charge against the Jandel Company until
August 10, a copy of the charge which Weinstein filed against the Union on June
9 had been served on the Jandel Company prior to Humphrey's call, and it is
apparent that Andelman believed that Weinstein had involved the Company in
some sort of litigation which was the very sort of an involvement he had hoped
to avoid, so at this point, in the course of events, Andelman found himself in
a very uncomfortable position. The Washington Local, the Respondent in the
CB case, had never before had any trouble of this kind, and confronted now with
Weinstein's accusation of a violation of the Act and the interposition of the
official agent of the Board, the Union apparently got busy seeking to bring about
some settlement of the matter and to advert formal proceedings. Brownstone, the
regional director of the International Fur and Leather Workers Union, hereto-
fore mentioned, came from New York to lend assistance. Early in June and, as
I estimate, although these various dates are vague, shortly after the above-
mentioned call of Humphrey upon Andelman, Brownstone called on Andelman.
It seems, as indicated by what was said and done in some of these conferences,
that the price of a settlement as laid down by Weinstein, so far as he personally
was concerned, was that he have not a job but a job at Jandel's as he claimed
had been promised to him. Brownstone testified that Weinstein demanded that
he have a job at Jandel's "even if it meant that Friedman be stopped from work-
ing there." The fact that the most in this respect that would be available to
Weinstein, assuming Friedman was eliminated, would be employment from the
time the shop was reopened until the end of the season or, at the latest, the end
of December, carries the suggestion that Weinstein may have had in mind
capitalizing on the situation to get assurances of year-around employment at the
Jandel shop. Be that as it may, when Brownstone called on Andelman, lie told
Andelman, in substance, that he wanted to settle this matter to the satisfaction
of Weinstein, the Union, and Friedman, and asked Andelman to employ both
Weinstein and Friedman. Andelman told Brownstone that the work in the
shop would not justify hiring "both of them," and that the only way he could
put Weinstein on when the shop was reopened would be to "lay off Friedman."
Brownstone told Andelman that since he had given Friedman a trial and ap-
227260-53-vol. 100 -91
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proved him for a job, the Union "would make an issue with him" if he "dis-
criminated" against Friedman and gave Weinstein a job at Friedman's expense.
Andelman said that had the work in the shop, in his opinion, justified it, he would
have agreed to employ both of them when the shop reopened.
The next conference, which was initiated and convened by Humphrey, was
held at Humphrey's office in Washington. The best calculation I am able to
make as to the date is that it was "around June 26." In attendance were Hum-
phrey, a Mr O'Connell, also an agent of the Board, Weinstein, Andelman, Brown-
stone, and Smith. About the purpose of this conference, Weinstein said : "The
complaint' was then in effect, and Mr. Humphrey was trying to get everyone to-
gether, and trying to reach some kind of a settlement." The conference lasted "a
couple of hours." Neither Humphrey nor O'Connell testified and the General
Counsel relies almost all together on Weinstein's testimony as to numerous state-
ments which he claims were made by Andelman, Brownstone, and Smith, ap-
parently in response to questions by Humphrey, O'Connell, and himself. The
statements were offered as constituting admissions tending to support Weinstein's
claims and the General Counsel's theories of this case. Weinstein testified in
detail as to the statements which he says were made by Andelman and the union
representatives during this and later conferences which he attended. I am
dubious of Weinstein's ability and reliability to remember and accurately quote
the literal language of several people on several different occasions, as he purports
to do, and again, in evaluating his testimony in this respect, I have in mind the
difficulty, heretofore mentioned, of separating his impressions and beliefs about
what was meant and implied from what factually was said. Further even what
Weinstein relates as being the literal language used is obviously plucked out of
context without the explanatory modification of what went before or prompted it.
Apparently Humphrey and the union representatives, particularly Brown-
stone, who did most of the talking on the part of the Union, proceeded on the
theory that if Weinstein were admitted to the Union, and was provided with a
job at the Jandel shop or an equivalent job that would settle the whole matter,
and that seemed to be the principal subject of their discussion, however, Wein-
stein held rather persistently to the proposition that he had been promised and
should have a job at the Jandel shop, that nothing less would satisfy him, and
that if that necessitated dispensing with Friedman, then Friedman should go.
Although Brownstone said that Weinstein finally did propose that if he could
"get a job similar or as good" as that he formerly had held at Jandel's, he
would "have no objection." This conference and what was said can be better
understood in the light of these facts that the primary considerations were
getting Weinstein a job, and how and where and also full membership in the
Union.
Weinstein said he was the first to arrive for this conference at Humphrey's
office and that shortly after, he, Humphrey, and O'Connell were joined by Brown-
stone and Smith. The gist of Weinstein's testimony about the conference follows.
Humphrey "related to them of the complaint that I have made," and then Brown-
stone "said he was willing to admit that it was an injustice done as far as not
taking me in the Union but he would use his influence . . . they should take
me into the Union" and "'We don't have to come here but we come here to
straighten this matter out, and as far as the job is concerned, if that would
be so as Mr. Weinstein claims, I wouldn't be here even. The fact is that Mr.
Andelman called the Union and asked for a man, and we sent him a man.' In
a few minutes Mr. Andelman came and I asked Mr. Andelman, `Did you call
the Union for a man,' and he said `No, I didn't.' "
° Weinstein apparently meant the charge against the Union had been filed.
JANDEL FURS 1429
I here interrupt the statement of Weinstein's testimony to note that Andelman
testified that he had no recollection of ever being asked by anyone at this con-
ference whether he had called the Union or any of its officers in the spring of
1950 for a man , and denied that he "ever (at any time) called the Union for
a man ." This testimony of Weinstein that such a statement was made by a
union officer in this conference is the only testimony to that effect and does not
constitute evidence of sufficient weight and substance to establish that such
occurred, or overcome Andelman' s denial.
Continuing his testimony about the conference at Humphrey's office, Wein-
stein said that as the conference proceeded with "questions by Mr. Humphrey,"
Smith "stated that the next job that will be opened it will be given to me" and
that he (Weinstein) said, "that job (at the Jandel shop) I felt was mine, that I
have been promised by Mr. Andelman" but "I suggested that they should let
me work with Mr. Friedman, to divide the work . . . and when there is a
job open either Mr. Friedman or me will take that job . . . I was willing to
share the work with him." Weinstein said that Andelman "agreed to my sug-
gestion that we divide the work," that Brownstone, after referring to Friedman's
experience with mink work and that Andelman had lost a mink operator who
had worked there the year before, asked Andelm.n why he did not hire both
Weinstein and Friedman, that Andelman said he had tried Friedman "for a
couple of days" 10 but "did not know how he is going to work out," and "there
might be a possibility" later on that he would "need extra help" in which event
he would be "only too happy to call" Weinstein. About this conference Weinstein
further testified, among other things : Andelman "said many times, Mr. Wein-
stein, I want you to be back," and "several times" that he had been satisfied with
Weinstein's work otherwise he "would not be wanting" him back ; explaining
why he employed Friedman instead of Weinstein, although he wanted to hire
Weinstein, Andelman "related the way he has been pressed upon to have Mr.
Friedman in the place of me "he (Andelman) told me in the presence of all
of us that the Union insists, that the shop chairman and Mr. Smith, that he
should take Friedman before he takes me"; and Andelman said the shop "was
going to be closed . . . that he will have to decide which one to take, and
that Mr. Friedman has been only under trial period, and he actually didn't make
up his mind , but he would have to make up his mind which one to take."
As in many instances in this record, Andelman was not asked about and did
not in a direct way deny or testify concerning each specific statement which
Weinstein attributed to him, but his testimony as a whole about his position,
attitude, and action in the matter of hiring Friedman, and his reasons for
doing so indicate the improbability that he made statements of the nature,
effect, and import of those Weinstein attributes to him. No other person present
at this conference confirms or corroborates any statement by Andelman on
that occasion of like or similar import. Further, as has been heretofore pointed
out, the position, which Weinstein says Andelman there described of being
"pressed" and coerced by the Union and its officers and agents into refusing to
hire Weinstein, although he wanted and desired to do so, and of taking Fried-
man instead , is contrary to the preponderance of the credited testimony and
the well-established facts in the case. However, a fractional part of Weinstein's
last-mentioned testimony was confirmed by Andelman to the extent that in
response to Weinstein's question whether his work had been satisfactory, be
had replied in the affirmative and that during this conference he had not spoken
in any "derogatory" manner of Weinstein.
10 This was a month after the end of Friedman's trial period which had lasted 2 full
workweeks and at the conclusion Andelman pronounced Friedman's work entirely satis-
factory, and Friedman as suitable and qualified for a year-around job.
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brownstone 's testimony about the more pertinent parts of this conference
is : He went to the conference "arranged by Mr. Humphrey . . . with a view
to seeing what could be done towards straightening this matter out" ; Humphrey
requested that Brownstone "do whatever" he could "to help" Weinstein "get
a job," and Brownstone assured Humphrey he would do so, and Humphrey
"raised the question" of why Weinstein had not been taken into the Union.
and Brownstone explained to Humphrey "the reasons" Weinstein had not there-
tofore been granted a full membership ; Weinstein demanded that Friedman
be discharged from Jandel' s, and that he be hired in Friedman's stead ; since
Friedman had already been accepted and approved by Andelman for a permanent
job when the stop was reopened, Brownstone interposed the objection to Wein-
stein's proposition that to discharge Friedman in order to give Weinstein a
job would be "discrimination against" Friedman "Union or no Union" to whick
lie "could not possibly agree" ; whereupon Weinstein said, "Then get me a job
as good as Jandel's," and added that "he will then have no objection" ; Brown-
stone told Weinstein "I haven't the power to give jobs but whatever influence
I have with the Local or with the furriers in town, I'll see to it that help is.
given you to get a job"; Brownstone then urged Andelman "to take both"
Friedman and Weinstein, and advanced arguments in that connection as to
why he thought Jandel could use both when the shop reopened, as Andelman
could work Friedman altogether on mink and leave the "black work" to Wein-
stein; Andelman said he was not "in a position" to agree to that at that time,
and "when the conference adjourned the matter of whether, when the plant
vi as reopened, Andelman would be in a position to hire both of them, was left
pending." Andelman says of this, that for business reasons, which he explained
in part, he told Brownstone, "that the conditions at that time were such that
I was not justified in making any promise (to hire both), even an indefinite
promise." In reply to questions by Humphrey and Weinstein about admitting
Weinstein to full membership in the Union, $rownstone said he stated that
since by that time Weinstein was "in his second season in town" he would
recommend that in accordance with "the usual procedure" Weinstein be admitted
to full membership.
In order to, maintain the continuity of events, I interrupt the history of the-
series of conferences, which followed the filing of the charge by Weinstein
against the Union, to note the following incident . On July 5, Weinstein
received a telegram signed by Smith which he says read : "You are invited to,
appear before the Executive Board tonight, 9: 30 p. in, at the JCC." Although
Weinstein understood, as was the purpose of the notice, that he was thus being
advised that he had been accepted and would be admitted that night to member-
ship in the Union, he said it was about 9 p. in. when he got home and received
the telegram and because he "wasn't feeling well and it was kind of late any-
ways" he did not go to the meeting. So fe.r as appears, Weinstein made no,
explanation to the Union of his failure to respond to this notice.
The next conference was held at the Jandel temporary store quarters on
Wednesday, August 2 (1950). It was "called" by Andelman. Present were
Brownstone, Smith, and Helman of the Union, Weinstein and Andelman. The,
discussion was almost wholly between Weinstein and Brownstone with perhaps
some side remarks by Ilelman. Weinstein said Andelman "didn't say too much."
In the course of the conversation some rather caustic remarks were made by
Brownstone, according to Weinstein, and by Weinstein, according to Brownstone.
Weinstein, in his way, quoted Brownstone as saying on this occasion "that he
(Brownstone) would use his influence for my membership," but the Union
11 This was August 2, and Weinstein had been notified on July 5 to report for initiation-
JANDEL FURS 1431
will insist upon having Friedman come and not me. They will insist on Mr.
Andelman to hire Mr. Friedman instead of me." Brownstone "categorically"
denied most of Weinstein 's version of their conversation However, so far
as the discussion related to the purpose of the conference , Weinstein and
Brownstone respectively merely reiterated much of what they had said at
the previous meeting at Humphrey ' s office. Of this conference Andelman said
that he "called " it because "I wanted to use my best endeavors to straighten
this thing out amicably . This conference not only didn't succeed , but there
were a lot of bitter words exchanged . . and I . . . was unhappy about the
whole thing."
The last conference occurred on the following Friday, August 4, at the office
of Sol Alpher, an attorney , who represented Weinstein in his suit against
Cavalier . While Alpher disclaimed any formal attorney and client relationship
existed between him and Weinstein as to this matter, nonetheless , acting for
Weinstein and in his behalf on the basis, he said, "of a friendly relationship,"
he called at the Jandel temporary store sometime in June after the shop had
closed down and the remodeling work had commenced . He could not be any
more definite about the time. I am satisfied that it was sometime after
Weinstein 's conversation with Andelman at Sholls , and that Alpher's visit
was likely prompted by that conversation.
On this occasion Alpher talked to Silberman , one of the Jandel partners,
alone, Andelman being out of the city . There is a difference between Alpher
and Silberman about what was said. Alpher said he asked Silberman to take
Weinstein back in his employment and Silberman said it would not be possible,
that the Union objected to Weinstein 's employment by Jandel and "had re-
quested the employment of another individual ." Silberman said that he told
Alpher he had "nothing whatever to do with the hiring . . . in the shop . . .
(hat was wholly Andelman 's function ," that Friedman "had been tried out"
by Andelman , and it was his (Silberman 's) "impression that Mr. Andelman
thought Mr. Friedman was a better mechanic ," that he thinks he also told
Alpher "that the Union recommended " Friedman , but that he did not say
the Union had "objected" to Weinstein 's employment.
- Alpher said that "subsequent" to his conversation with Silberman he "had
one or two conversations with Mr. Andelman on the telephone . . . the gist"
of which was "that he would not be able to reemploy Mr. Weinstein under the
circumstances ," and "later on we had a conference in my office " with Andelman
and Weinstein , "and also later in the same afternoon" with "those two and
Mr Smith of the Union ." This is the conference of August 4.
Alpher admitted that he discussed with and suggested to Weinstein the ad-
visability of filing charges with the Board. Whethei this was prior to and
in connection with the tiling of the first charge on June 9, against the Union alone,
or the charge against the Jandel Company on August 10, 1950, or both, is not
clear Andelman said that prior to this conference , Alpher had called him
"on several occasions" by telephone requesting and urging him to give Wein-
stein a job when the shop was reopened , and stating that Weinstein had "a
grievance" and that Weinstein "wanted to remain in the city and work" at
Jandel's. In view of these telephone calls, and the representations made by
Alpher , Andelman "understood him (Alpher ) to be all the time Mr. Weinstein's
lawyer."
As the end of the remodeling work and the reopening of the shop approached,
Andelman became even more concerned and worried about the dilemma con-
fronting him. With Weinstein and his lawyer , who had prosecuted Weinstein's
suit against Cavalier , on the one hand demanding that Weinstein be given a
Job when the shop reopened , even if it necessitated the dismissal of Friedman to
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provide a job for Weinstein, and Friedman and the Union on the other hand'
demanding that Friedman be retained in the job for which he had been hired,
but offering no objection to, and in fact even urging, the hiring of Weinstein also,
Andelman called Alpher and asked for this conference with him. Alpher, Wein-
stein, and Andelman were present. -
Alpher said the conference proceeded "on the assumption" that Friedman
"had been employed to begin when the shop should reopen for business" and
that the question discussed was "whether Friedman would be retained in the
employ of Jandel, or Weinstein would take the job which Friedman held or
share in that job." In his testimony about this conference, Alpher undertook to
state only his recollection of "the substance in effect" and impression of what
Andelman said. Alpher said that "the gist of the conversation of the conference
was to the effect that for certain reasons connected with the operation of the
fur Union, Jandel Furs could not employ Mr. Weinstein." Asked to state "in
substance what was said" he replied that the above quotation constituted "the
substance of Mr. Andelman's statements." In reply, and still undertaking to
state only what he designates the "substance," of what he considered the effect
of Andelman's statements, he said that Andelman said "he would not be able to
reemploy Mr. Weinstein as he had originally planned when the previous season
had ended, because the Union had requested the employment of a Union mem-
ber, a Mr. Friedman," and that "if he were to take Mr. Weinstein back, he would
have difficulties with the Fur Union which he didn't care to have " Pressed
as to what "the difficulties were," Alpher said, "I believe he said they would
strike his shop, or words to that effect."
It is noted that Alpher did not undertake to quote Andelman's exact language
and is hesitant about what Andelman did say about the "difficulties" with the
Union which he might encounter. Assuming the "effect" was as Alpher now
recalls, it must be remembered that they were discussing the situation as of that
time, August 4, 1950, and not the previous May 26 when Friedman completed
his trial period and was approved by Andelman as satisfactory for a permanent
job. It perhaps reflects the fear Andelman had of union action of some kind if
he now in August, after all that had occurred in the meantime, yielded to the
demand of Weinstein and his lawyer, rejected Friedman and hired Weinstein
instead. There had never been a strike or work stoppage in the history of the
Respondent Local Union. There is no direct or substantive evidence that the
Union or its officers in May, or from May to this date in August, or at any other
time, made any threat to strike or mentioned strike action in connection with
this matter. This is about the sum of the reference in the testimony to a
strike or work stoppage if Friedman was rejected in favor of Weinstein, and
certainly does not amount to or constitute substantive evidence that any such
action was ever threatened or mentioned by any of the union officers or agents.
Andelman and the union officers who testified in this hearing categorically denied
that anything of the kind ever occurred.
During this conference Weinstein repeated an offer which he had, among other
propositions, previously advanced, that he and Friedman "share the work" or
the job at Jandel's, with the understanding, however, that when and if another
job opened up at some other fur shop, one or the other would take it. Alpher
said "other methods for settlement of the dispute" were also discussed, one being
"that the Union might be in a position to advise him" (Weinstein) of an im-
mediate vacancy and thereby make "the whole question of employment for
Weinstein academic." Alpher further said that Andelman indicated that he was
"agreeable" to Weinstein's share-the-job proposition "if the other parties con-
JANDEL FURS 1433
cerned would agree." Andelman, however, while not asserting a definite rejec-
tion said he thought the share-the-job proposal was "impractical" because he
"did not think the two were of equal ability so as to share the work" and "if
both started to work" on the basis proposed "probably one would wait for the
other to leave for another place, and that would not come about and it would
create irritation in the shop between these two men."
Andelman said that he "made it clear" at this conference to both Alpher and
Weinstein that he "considered Friedman as more suitable for our place" and
that Friedman could "have a steady job" there "and that was the reason I pre-
ferred Friedman." Further Andelman said that he did not, at any time, either
on the telephone or during this conference, tell Alpher anything to the effect
that he "could not employ Weinstein because of the Union."
In connection with the discussion about enlisting the assistance of the Union
to find an immediate job for Weinstein, Alpber wanted to know what assurance
could be given that the Union would "carry this out." Andelman said that he
could "not make assurances for the Union," and asked Alpher if he wanted him
(Andelman) to call Smith by telephone and asked him to come to Alpher's office
and discuss these matters with him. Alpher and Weinstein conferred on that
and it was agreed that they would submit both propositions, the share-the-job
and the assistance of the Union in finding an immediate job for Weinstein, to
Smith. In response to Andelman's call, Smith came to Alpher's office and met
with Alpher, Weinstein, and Andelman. As to lending the assistance of the
Union and its officers in locating a job for Weinstein at the earliest possible
time, Smith readily concurred. In fact the union officers, pursuant to the discus-
sion at Humphrey's office, were already engaged in that very undertaking with
the hope that if a job was found for Weinstein that would end the controversy.
As to sharing the Jandel job, Smith said that he "had no objection to it" but
could not speak for Friedman, and that Friedman would have to decide that
for himself. Smith, however, agreed to submit the proposal to Friedman and
advise Alpher as to Friedman's decision.
After Smith left, Alpher and Andelman had a conversation, out of Weinstein's
hearing. Andelman asked Alpher, "Don't you think Smith is in good faith
when he makes those promises?" Alpher answered, "Frankly, he went beyond
my expectations." Then Andelman asked, "Don't you think Weinstein is not
interested in settling and only wants to sue?" Alpher answered, "Well, let's
put it this way, he is litigation minded." Andelman said that after the con-
ference at Alpher's office, he felt that Weinstein was not inclined to "amicably
settle ... and was intent on suing" and "that there was no point for me to
pursue my efforts any further."
On the next day, Saturday, August 5, Smith called Alpher by telephone and
advised him that he had submitted Weinstein's share-the-job proposition to
Friedman and Friedman "was not agreeable to the plan."
On the following Thursday, August 10, Weinstein filed the first and original
charge herein against the Jandel Company.
Conclusion about the Conferences
My conclusion about what these several conferences, which I have treated in
such detail, show is that Weinstein, fortified by the charge he had filed with
the Board and conscious of the fact that both the Union and Andelman were
desirous of avoiding litigation or further proceedings in this matter, seized
upon the situation to try to enforce his claim, which I believe was without sub-
stance in fact, that Andelman had made a definite promise to give him a job
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of some kind in the Jandel shop in 1950 , whether permanent or seasonal he had
not to this point made clear, and to assert the belief, which he possessed, that
the Union had somehow coerced Andelman into hiring Friedman in his stead
and further that the Union was for some reason personal to him refusing him
full membership . The last issue was apparently settled as the Union notified
Weinstein to appear on July 5 for admittance to full membership , and did admit
him to such membership when he appeared on August 16 for that purpose.
Weinstein 's other demands , which finally came down to this, that either he be
provided a job at Jandel 's or an equivalent job elsewhere , was the principal
subject of these conferences . Andelman would have had trouble compounded
had he yielded to Weinstein 's first demand and discharged Friedman and hired
Weinstein in his stead ; on the other hand, Friedman 's employment met the needs
of the shop and current business conditions did not justify hiring both as the
Union suggested and requested . Neither the Union nor Andelman could promise
or guarantee Weinstein a job elsewhere . All this considered in the light of the
findings and conclusions which I have heretofore announced , it appears that
the time of making a choice between Weinstein and Friedman , which started
these proceedings and but for which these cases would not be here , was not when
Andelman gave Friedman a trio! and accepted and approved him for a permanent
job, but the matter of making such choice really arose and confronted Andelman
for the first time after the charge against the Union was filed, under the cir-
cumstances related, when Andelinan , fearing Weinstein might bring a lawsuit
against Jandel as he had Cavalier, or involve Jandel in some other type of litiga-
tion, and the Union seeking to avoid involvement in an unfair labor practice
case, commenced efforts to placate Weinstein , and all of the arguments and
reasons of various kinds advanced pro and con by and between Weinstein and
the union officers and representatives during these conferences concerning why
and which man should have the job at Jandel 's related as of that time and not,
as it matter of fact, to the situation existing back when Andelman hired
Friedman.
M. The Jandel shop is reopened and resumes work
During "the second week in August," the exact date is not fixed,' the shop was
reopened and work resumed. The former regular, full-time, year-around em-
ployees, remaining after Dicker had left the previous February, were recalled.
The next week, "the third week in August," Andelman recalled Friedman and
Friedman has since that time to the time of the hearing been employed con-
tinuously in the Jandel shop as a year-around employee At one place Andelman
said that the 1950 season at Jandel's did not really start until after the shop
reopened and resumed work during the second week of August. At another
place he said he "did not hire any other operators" or "any temporary people"
during that season after he hired Friedman. However, it appears that he did
again hire as a temporary worker for the balance of the 1950 season, Mrs. Foer
who had worked, as did Weinstein, as a temporary during the 1949 season, and
also hired as a 1950 temporary a Mrs. Mahan, whom he considered "a better
worker" than Mrs. Porter who had worked, along with Mrs. Foer, as a temporary
in the 1949 season, and he did not recall Mrs. Porter. These women worked as
finishers and it may be there is no discrepancy here since operators and finishers
are different classifications or categories and Andelman's testimony about not
hiring any temporaries in the 1950 season is in context so linked with the
reference about hiring operators as to be subject to the interpretation that he
meant he hired no other operators in 1950 even on a temporary basis.
12 The conference at Alpher 's office had been held on August 4, and the charge against
the Company was filed August 9 during the second week of that month.
JANDEL FURS 1435
N Weinstein admitted to full membership in the Union-Goes to work on August
17 at Sperling's-Makes further demands on the Union
From June 7 (1950) when he appeared before the executive hoard of the Union,
2 days before he filed the first charge herein against the Union alone, Weinstein
did not again attend any union meetings of any kind until August 16, 1950, when
he was, as he states it, "actually initiated." Weinstein does not say how he
happened to go to the union or executive board meeting, whichever it was, on that
occasion. Smith said that pursuant to the "promise" he made "that time in
conference," 13 and in looking about for a job opening where Weinstein might
possibly find work, he asked Heiman, the secretary of the Union, "to see if there
was a chance" of Weinstein getting a job at Sperling Furriers, where Helman was
regularly employed. Smith sai dthat while Sperling's "kept only one operator" 14
he knew "that sometimes they put on an additional operator in the season and
sometimes they didn't." In August Heiman learned that Sperling could use a
temporary operator for the balance of the season and he recommended Weinstein
to his employer. According to Weinstein, the night he was initiated or admitted
to full membership in the Union, August 16. Helman asked him at that meeting
if he was working. Weinstein said he told Helman, "No, you know I am not."
Helman then inquired, "Would you like to go to work with me" at Sperling's?
Weinstein said he would and Helman told him "to come the next morning" to
Sperling's, which Weinstein did. It will be remembered that in 1948 while he was
working at Cavalier's, Weinstein had done considerable overtime work at Sper-
ling's so the manager there knew the kind of work Weinstein could do. When he
called at Sperling's on the morning of August 17, Weinstein talked- with the
manager and apparently was put to work that same day. Weinstein worked at
Sperling's until and through December 29 (Friday) 1950, "which was the end
of the (1950) season."
While Weinstein was working at Sperling's he sought out Brownstone on at
least three different occasions when he said he knew Brownstone "was in town."
Brownstone said that after Weinstein went to work at Sperling he "would look
me up every time I came to town" with demands that he be provided a permanent
job. Weinstein said he first went to see Brownstone, at the hotel in Washington
where Brownstone was staying, sometime in September or October (1950) while
he was working at Sperling's. On that occasion Weinstein said he told Brown-
stone, "I have been promised that they are going to take me into the Union [which
had previously been done] and they are going to give me a job as equal as I had
one . . . this job [at Sperling's] is on a temporary basis." Weinstein then com-
plained that Sperling "didn't want to pay me for the two days of high holidays,"
and "Mr. Helman had to go down" and "he finally compromised and paid me for
one when a Union man, as I understand, gets paid for both days." 'b Weinstein
was then a full-fledged member of the Union. Weinstein testified that thereupon
Brownstone said,-"but you are a temporary. I says 'Well that is just it. You
have made a promise that you are going to give me a job as equal as that .. .
since there is a complaint being in the National Labor Relations Board, I would
like to dispose of it.' [sic] He says, 'We are not afraid of threats.' I says, 'I am
not trying to threaten you . . . I just want fulfillment of what . . . was told me.'
11 Whether the conference to which he here refers was the one at Humphrey's office, the
Jandel store, or Alpher's office, is not indicated There are circumstances indicating that
the union officers had been making efforts since the conference in Humphrey's office to
locate a job for Weinstein.
14 Apparently year-around employment is meant and , as I understand , Helman held
that job.
15 I take this to mean that Helman took Weinstein ' s complaint to the Employer and the
Employer agreed to pay the wage for one holiday.
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He says, `You are working.' I says, `Yes, but that is not a job, that is not my
peace of mind.' " Weinstein gives little detail about the conversations on the
other two occasions mentioned.
About these calls which Weinstein made on him during this period that Wein-
stein was working at Sperling's, Brownstone said , and his testimony is generally
consistent in import with Weinstein's own testimony, that Weinstein "raised
the question . . . about a more permanent job." As to the occasion to which
Weinstein's above testimony related, Brownstone said that Weinstein knew the
Sperling job was only for the 1950 season and complained that it would last only
"to the end of the year." Brownstone reminded Weinstein that most of the
jobs in the fur industry are "seasonal and last [only] seven or eight months, in
some places it may be a month more or less, with some exceptions" such as "those
that work on mink" who "in the past few years" have worked "the whole year
around, but even there are some exceptions." Continuing, Brownstone told
Weinstein that he had work "to the end of that season like anybody else" and
"when the new season started we would help him, if we could, to get a job."
Weinstein's job at Sperling's appears to have been the equivalent of the one
he had held at Jandel's the previous season. It was a temporary or seasonal job,
as the Jandel job had been. He received the same basic wage which Jandel had
paid him, and did the same kind of work he had done at Jandel's. Assuming that
neither Friedman nor some other fur operator, whom Andelman found or con-
sidered more suitable, had appeared by the time after the shop was reopened,
that the work of the kind Weinstein was competent to do, that is, other than mink,
had become so heavy that Andelman needed another operator for that kind of
work and he had called in Weinstein, which was all and as much as Weinstein
could expect, Weinstein would not have gone to work at Jandel's at any earlier
time than that at which he commenced work at Sperling's, and then his work
would have been temporary or seasonal and would have ended on December 29,
the same time it did at Sperling's. However, measured by Weinstein's own
testimony as to the tenor, purport, and purpose of his conversations with and
representations made to Brownstone during this period of employment at Sper-
ling's when, learning Brownstone was in Washington he sought him out, what
Weinstein's course of conduct throughout the negotiations following the filing
of his charge against the Union intimated, for the first time, clearly becomes mani-
fest, that is, that he would not be satisfied with anything less than a permanent
year-around job and purposed to use the situation created by his charge to
achieve that end. He complained to Brownstone that he had been promised a
job "equal to the one" he had held at Jandel's the previous season but that this
job at Sperling' s was not permanent and was only a temporary job for the re-
mainder of that season, and using that leverage, reminded Brownstone that the
charge he had filed with the Board was still pending and that he "would like to
dispose of it." Thus Weinstein's price for the disposition of the charge, as he
apparently believed he had the power to prescribe and exact, was now clearly
declared to be that he be provided and assured of a permanent or a year-around
job. As has been repeatedly stated, Weinstein had never been employed on a
permanent basis at Jandel' s and could not qualify for a year-around job there,
and as Brownstone's foregoing testimony shows, and it is corroborated by other
credible testimony in this record to the same effect, the year-around or permanent
jobs were few and existed mostly in shops which did mink work which Wein-
stein could not do.
After his admittance at the meeting of August 16 to full membership in the
Union, Weinstein resumed and continued attendance at union meetings until
February 15, 1951, "when they had installation of officers." On February 9 an
JANDEL FURS 1437
amended charge against the Jandel Company signed by Weinstein had been served
indicating that the proceedings before the Board, which Weinstein had set in
motion, were being continued . Brownstone delivered a speech at the February
15 meeting for the installation of officers during which he referred , according to
Weinstein , to "a man who came here a year ago and wanted to enjoy the gains
that we have gained without going through with everyone else" and "we tried to
work with him but mind you if he wins he is going to lose ... every local in the
International will know this-man ." Weinstein said that as Brownstone made
reference to this unnamed man "he stretched out his neck and looked towards
me." Weinstein did not thereafter attend union meetings . Eight days later, on
February 23, 1951, the consolidated complaint herein issued . This brings to a
close the review of the evidence and findings thereon in connection with Wein-
stein's claim of discrimination against him.
0. The alleged illegal "practices"
I have heretofore found that the Company and the Union , since December 9,
1949, have not "maintained in force and effect a collective bargaining agreement
containing certain unlawful " union-security provisions as alleged in paragraph
V of the consolidated complaint herein before same was amended.
However, by paragraph VI of the complaint it is alleged that, since December
10, 1949, the "Company and the Union ... have engaged in practices which re-
quire" ( 1) that all shop workers be hired "through the Union ," and (2) that
"all such employees obtain a working permit from the Union before entering
.into the employ of the Company , and become and remain members in good stand-
ing of the Union within two weeks after commencement of their employment."
These are the same requirements which it is alleged in paragraph V were main-
tained in force and effect by the 1949 supplementary agreement . The complaint
limits the alleged "practices" to the relationship existing between the Respondent
Company and the Respondent Local, and evidence , if any, supporting the allega-
tion must be found in such of the testimony , and the reasonable inferences
therefrom , relating to the acts and conduct of the Company and the Local in
connection with the hiring and employment of fur workers at the Jandel shop.
However, this is not to say that evidence , if any there be, of general policies
and practices of the Union of the kind alleged is not to be considered as tending
to corroborate any testimony there may be of such practices by the Union in
this instance.
Conclusion on the Alleged Illegal Practices Specified in paragraph VI of the
Complaint
The credited evidence herein is wholly insufficient to sustain the allegation
that Andelman , or for that matter any other employer in the Washington area,
within the 6-month period before the filing of the first charge herein , or at any
other time before or since, ever hired any fur worker "through the Union" or
that any illegal hiring hall arrangement or system of any kind existed, and the
preponderance of the credited evidence is to the contrary . Andelman said it was
not his practice in hiring fur workers to look to or call upon the Union to supply
him with or send him a worker and there is no substantive evidence of a single
instance when he did so. In each instance about which there is any specific and
direct testimony concerning the manner of hiring , Weinstein , Dicker , and Fried-
man, the individual came alone , and on his own, to the Jandel shop seeking work.
None of them came in response to any request by Andelman to the Union to supply
a worker. Clearly Weinstein did not come to the Jandel shop applying for work
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at even the suggestion of the Union or any of its officers, and there is no evidence
that either Dicker or Friedman were even so much as directed there by the Union.
There is no evidence that there was any communication whatever between the
Union, or any of its officers, and Andelman about any of these men prior to or
preceding his appearance at the shop seeking work. In fact, the evidence is to
the contrary. Nor is there any evidence that any of the women who were hired
as finishers on a temporary basis were sent or supplied by the Union at or
without a request from Andelman. So far as appears the hiring was an indi-
vidual and uninhibited prerogative which Andelman fully exercised on the basis
of his judgment as to competency and suitability. This is not to say that news
was not interchanged at the corner or at other group gatherings of fur workers
about job possibilities, openings, or vacancies, but that is a far cry from the
alleged practices, and not even akin, at which this allegation is aimed.
The further allegation of paragraph VI of the complaint concerning "practices"
that all fur workers were required "to obtain a working permit from the Union
before entering into the employ of the Company and become and remain mem-
bers in good standing of the Union within two weeks after commencement of
their employment" also fails because of the insufficiency of credited evidence of a
substantial nature to support same, and again the established and credited facts
and circumstances and the legitimate inferences therefrom are to the contrary.
The only evidence which purports to touch anything like directly upon these al-
legations is that concerning the hiring of Weinstein at the Jandel shop in June
1949, which anyway was more than 6 months before the filing of the first charge
herein, and is a part of the background material admitted. I have heretofore
noted my findings, also my conclusions as to credibility, in this respect in dis-
cussing the evidence concerning that hiring. It suffices to say here that in my
opinion, if that portion of Weinstein's testimony which may be invoked as tend-
ing to support these allegations is taken at full face value, that it, nonetheless,
does not warrant an inference that any such requirements were made of Wein-
stein and certainly, and in any event, when the credited testimony of Andelman
and Siegel is considered it must be found that no such requirements were made of
him. There is not a scintilla of evidence tending to show any general practice
of this sort on the part of the Union. In fact the evidence shows that there were
some few nonunion fur workers working at the time of the hearing in shops
where they have worked for long periods of'time, and with which the Union has
the identically same contract which it has with Jandel, who have never held a
working permit from the Union, or a temporary union book, or paid any dues to
the Union, and have never become members of the Union and although they have
been solicited to join have refused to do so, nevertheless there has never been any
demand or request by the Union upon any of their employers to dismiss them or
any of them, and there is no evidence tending to show that their employment was
in any way affected by their nonunion status.
Wherefore, I find, that since December 9, 1949, the Company has not violated
Section 8 (a) (1), (2), or ( 3), and the Union has not violated Section 8 (b) (1)
(A) and (2), by maintaining "in force and effect a collective bargaining agree-
ment containing" the "unlawful" so-called union-security provisions set forth in
paragraph V18 of the complaint, or by engaging in the illegal practices described
in paragraph VI of the complaint, as alleged in paragraphs IX and X of the
complaint.
16 The union-security provisions of the 1947 contract here and hereinafter referred to as
being those described in'paragraph V of the complaint are those provisions enumerated
as 1 and 2 of that paragraph as it read before the amendment thereto on the fifth day
of the hearing. The issue raised by that amendment will later be dealt with separately.
JANDEL FURS
Conclusion as to the Alleged Discrimination Against Weinstein
1439
Paragraph VII of the complaint alleges that since "on or about February 1950"
the Union "did request and demand that the Company refuse to rehire" Wein-
stein "pursuant to said illegal and invalid collective bargaining agreement and
practices" and paragraph VIII alleges that the Company refused "to rehire"
Weinstein "pursuant to the demand of the Union described in paragraph VII
because said Weinstein was not a member in good standing in the Union and/or
pursuant to said illegal and invalid collective bargaining agreement and prac-
tices, thereby implementing said agreement." In reviewing the evidence about
the hiring of Friedman in 1950 and the failure of the Company in 1950 to again
hire Weinstein, I have made findings of fact and resolved questions of credibility,
as I went along. My conclusion about this predominate issue in the case, which,
I think, has already been definitely indicated, is that the credited evidence is in-
sufficient to sustain the allegations of the complaint in this respect and make out
a violation, in that connection, of Section 8 (a) (1) and (3) by the Company or
Section 8 (b) (1) (A) and (2) by the Union, as alleged in paragraphs IX and X
of the complaint. In fact, as I evaluate the evidence on this issue the preponder-
ance or greater weight is with the Respondents.
P. Amendment to complaint directed to the provision in the contract creating a
welfare fund
On the fifth day of the hearing the General Counsel submitted, and was granted
leave to make, an amendment to the complaint. This amendment as finally
phrased, after some changes in the original, alleged that in violation of the Act
the Company and the Union,
since December 1, 1949 ... have maintained in force and effect a collective
bargaining agreement containing an unlawful clause which requires the
Company to contribute to the Union an amount equal to approximately 2%
of the gross earnings of all 'of the Company's fur worker employees for the
purpose of insurance, sickness, hospitalization and death benefits which are
administered pursuant to Rule and Regulations promulgated by the Company
and the Union and require that the recipients of such benefits or funds hp
members in good standing of the Union."
The contract of June 6, 1947, contained this provision (paragraph 29)
The Firm agrees that it will contribute to the Union not to exceed two per
cent (2%) of the base pay of its fur worker employees during the term
of this agreement, said fund to be utilized for the purchase of an insurance
policy covering health, sick, hospitalization, and death benefits, and said
fund to be administered by the Union and employers jointly.
Although the joint committee, composed of representatives of the Guild and
the Union, which negotiated the supplementary agreement of June 6, 1949, were
fully aware that the union-security provisions of paragraphs 1 and-2 of the 1947
agreement had been rendered invalid by the 1947 amendment of the Act, and
intended and sought by the unclear and incomplete proviso of paragraph 10 of
the 1949 extension agreement to eliminate those provisions, the above paragraph
29 of the 1947 agreement was not mentioned, discussed, or consider'd in the
1 The amendment was added as (3) in the requirements specified in paragraph V At
the complaint as being maintained in force and effect by the 1949 snnuleTientary or
extension agreement.
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
course of the 1949 negotiations, and apparently it did not occur to the members
of the joint committee, or any of the participants in the negotiations, that either
that paragraph or its administration, as then in effect, might be in violation of
the amended Act. Thus it was not the purpose or the intent of the parties that
the proviso of paragraph 10 of the 1949 supplementary agreement should apply
to paragraph 29 of the. 1947 agreement, and that paragraph, to all intents and
purposes, was maintained in force and effect, and its administration continued
in the same manner as previously during the period June 6, 1949, to June 6, 1951,
covered by the 1949 supplementary or extension agreement.
In alleging in the original complaint, issued February 23, 1951, paragraph V
thereof, that by the extension agreement of June 6, 1949, the Company and the
Union after December 9, 1949, "maintained in force and effect" an agreement
containing "unlawful clauses," the General Counsel assailed only the provisions
of paragraph 2 of the 1947 agreement, relating to hiring "through the Union,"
obtaining "a working permit from the Union before entering the employ of the
Company," and becoming and remaining a member "in good standing of the
Union within 2 weeks" after commencement of employment. This issue concern-
ing the "welfare fund" was not injected into the case until the fifth, and what
but for this amendment would have been the last, day of the hearing, and since
at that time the issues presented by the complaint as originally drawn had been
fully litigated and the evidence thereon virtually completed, I have elected to
deal with this issue separately, as it was tried, and after having disposed of the
case as posed prior to its eleventh hour introduction.
Since 1945, pursuant to the welfare fund provision of the contract, above
quoted, to the date of the hearing, each employer with whom the Union
maintains a contract18 has periodically paid over to the fund provided for
"two per cent of the base pay of all his fur worker employees." Throughout
the fund "has been administered jointly by a committee composed of representa-
tives of the Employers Guild . . . and representatives of Respondent Union."
In the administration of this fund the benefits provided for have been limited
to "members in good standing of the Respondent Union." There is but one
fund to which all employers having a contract with the Union contribute.
The individual employee does not contribute anything to this fund and ,no
deductions of any kind or amount are made from his wage for that purpose.
The fund is thus made up wholly of these 2 percent contributions made by the
employers.
The General Counsel's theory is that the maintenance in effect of paragraph
29 of the 1947 agreement since December 9, 1949, and the administration of
the fund, in the manner stated, whereby benefits do not derive to all employees
alike, whether members or not of the Union, but only to members of the Union
in good standing, "encourages membership in the Union in order to participate
in the benefits of the fund," and "encourages a member of the Union not in'
good standing to get and stay in good standing".which constitutes, he contends,
violations of Section 8 (a) (1), (2), and (3) of the amended Act on the part
of the Company, and Section 8 (b) (1) (A) and (2) by the Union. The
General Counsel announced that the remedy sought is that the fund be main-
tained and administered on a nondiscriminatory basis for the benefit of all
Employees whether or not they are members of the Union, or members of the
Union in good standing.
11 As heretofore noted, while the contracts were negotiated and agreed upon by the Guild
and the Union, the contracts were not executed by them but each employer separately or
individually executed, in identical form , the contract so agreed upon , however, the admin-
istrative functions were and are carried out by the Guild, representing all employers, and
the Union acting jointly.
JANDEL FURS 1441
• The question here interposed was not presented or suggested by counsel
for Respondents and is raised sua sponte. By this amendment the General
Counsel, in effect, seeks to set aside or have declared as invalid the provision
of the 1947 agreement relating to a welfare fund which was extended and
maintained in effect by the 1949 supplementary agreement, and obtain an order
against the Union and this one signatory Company to cease, desist, and refrain
from further giving effect to such provision and the administration of same in
the manner shown by the evidence. Thus, as Trial Examiner, I am asked to
rule on the validity of this provision and its administration by the joint com-
mittee of the Guild and the Union during the period from 6 months next
before the filing and service of the first charge herein to the date of the
hearing. Upon the facts about the negotiation and execution of the contracts
and the administration of this fund it would appear that the Guild and its
members and indeed all employers with whom the Union maintains this con-
tract, have -a material and legal interest in any interpretation or construction
of the terms and provisions of the contract, or ruling concerning the propriety
and legality of the administration of the fund, which any tribunal or govern-
mental agency dealing with the contract is called upon, or undertakes, to
make, and would be affected and concerned by a ruling declaring same to be illegal
or invalid and in violation of the Act, such as the General Counsel seeks and,
therefore, should be afforded an opportunity to be heard on that issue, that
is, that they may well be necessary if not indispensable parties to such adjudica-
tion, Green v. Brophy, 110 Fed. 2d (C. A. D. C.) 539, 541. For the above-stated
reason, I am dubious of my authority and that of the Board to adjudicate the
issue presented by the amendment. However, it is not necessary that I pursue
the question to a conclusion as, assuming such authority, for another and entirely
different reason which follows, I am disposed to dismiss the allegations of the
complaint contained in the amendment.
The last day of the hearing, to which it had been postponed because of the
amendment, was confined, so far as the taking of evidence, to the issue raised
by the amendment. I was at that time fully convinced by the representations
made and the stipulations entered into, as well as the attitude generally of
the attorney representing the Union and that of the union officers and other
union representatives present and participating in the hearing on this amend-
ment, and what the evidence on the other issues had previously demonstrated,
that in maintaining in force and effect the 1947 contract provision relating to
a welfare fund, and continuing the administration of that fund in the same
manner as that prior to the enactment of the Labor Management Relations Act,
1947, there had been no wilful purpose or design on the part of either the Union
of the Guild to evade or violate that Act nor did such course of action reflect
any such intent generally." I was further impressed with the good faith of
the announcement then made by counsel for the Union, and the union officers
and representatives, that already, during the adjournment of the hearing, action
had been inaugurated to bring the welfare provision of the contract, and its
administration, into conformity with the General Counsel's concept of legality
under the amended Act.
The June 6, 1949, supplementary or extension agreement expired June 6, 1951,
20 days after the close of the hearing, and was succeeded by a new agreement
or contract complete within itself without incorporation or extension by reference
of the provisions of any previous contract, either in whole or in part, arrived
19 Apparently it did not occur even to the General Counsel until the eleventh hour that
paragraph 29 of the 1947 agreement as extended by the 1949 supplementary agreement
might contravene the amended Act.
1442 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
at by and between the Union and the Guild and effective as of June 6, 1951.
By stipulation between the General Counsel and the attorney representing the
Union a copy of this last agreement executed by Jandel has been received in
evidence since the close of the hearing and same is hereby made a part of the
record herein on the amendment. None of the provisions, or provisions of like
effect, of paragraph 2 of the 1947 contract, specified in paragraph V of the com-
plaint herein before the amendment, which the General Counsel claimed were
carried over and extended by the 1949 supplementary agreement, are found in
this 1951 agreement.
By this June 6, 1951, agreement, which runs to June 5, 1953, the Company
executing same "recognizes the Union as the exclusive bargaining agent for all
its" fur worker employees, and paragraph 28 thereof requires that the Company
shall "pay into the Health and Welfare Fund a sum equal to two percent (2%)
of the base weekly wages of its fur worker employees," and that "said fund"
shall "continue to be administered by the parties jointly 20 and utilized to pro-
vide health, sickness, hospitalization, and death benefits for employees."
As I view the matter this 1951 agreement, in effect, renders the issues pre-
sented by the amendment moot. Assuming, as the General Counsel contends, that
the 1949 extension of the welfare fund provision of the 1947 agreement, and the
continued administration of the fund in conformity therewith, resulted in a
violation of the amended Act, nonetheless, that has ceased and all previous wel-
fare fund provisions have been supplanted by the welfare fund provision of the
June 6, 1951, agreement which specifically, as well as in context, applies to all
fur worker employees without any qualifications thereon to be found anywhere
in the agreement limiting the benefits to union members only. Under the circum-
stances, and in view of my belief, as above stated, as to the good faith of the
Union, and for that matter of the Guild although only one member Js a party
to these proceedings, I do not perceive that it would serve any remedial pur-
pose to recommend that an order issue directed to the Union and Jandel, one
member of the Guild, to cease and desist, and enjoining them from doing some-
thing which the Union and the Guild, its members, and all employers executing
the contract already, and 1 believe in good faith, have corrected. Hence, and for
the reason last stated, I shall recommend that the allegations of the com-
plaint set forth in the amendment be dismissed.
CONCLUSIONS of LAW
As heretofore stated this case was fully tried on the consolidated complaint as
originally drawn and issued and thereafter a distinctly separate hearing was
had on the amendment. My disposition of the amendment is above announced.
The following conclusions of law are therefore addressed to the allegations of
the complaint as it was before, and without here taking into consideration the
amendment.
1. Fur Workers Union Local 72 (Washington, D. C.) of International Fur
and Leather Workers Union of United States and Canada is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
2 The credited evidence considered as a whole is insufficient to make out or
establish a violation by the Respondent, Jandel Furs, a partnership, of Section
8 (a) (1), (2), and (3), or any of said subsections, of the Act, as alleged in
paragraphs V, VI, VIII, and X of the consolidated complaint.
20 I have no least question in view of the history of the welfare provision and its admin-
istration that this means by the Guild and the Union jointly as theretofore
ATLAS STORAGE DIVISION, P & V . ATLAS INDUSTRIAL CENTER 1443
3. The credited evidence considered as a whole is insufficient to make out or
establish a violation by the Respondent Union: of Section 8 (b) (1) (A) and (2),
or either , of the Act , as alleged in paragraphs V, VI, VII , and IX of the consoli-
dated complaint.
[Recommendations omitted from publication in this volume.]
ATLAS STORAGE DIVISION , P & V ATLAS INDUSTRIAL CENTER, INC. and
R. THOMAS BUSCH, PETITIONER and CHAUFFEURS , TEAMSTERS &
HELPERS GENERAL LOCAL UNION No. 200, INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, CHAUFFEURS , WAREHOUSEMEN & HELPERS OF
AMERICA, AFL. Case No. 13-RD-123. October 9, 195'2
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Joseph Cohen, hear-
ing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
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 Herzog and Members Murdock and Peterson].
Upon the entire record in this case, the Board finds: I
1. The Employer is engaged in commerce within the meaning of.
the Act.
2. The Petitioner asserts that the Union is no longer the repre-
sentative of the employees designated in the petition as defined in
Section 9 (a) of the Act. The Union, a labor organization, is the
currently recognized representative of the Employer's employees,
who are part of a multiemployer bargaining unit.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
The Petitioner seeks decertification of the Union in a unit of inland
warehouse employees, limited to the employees of this Employer.
The Union contends that the above unit is inappropriate, because it
is but a segment of a multiemployer unit which the Union has repre-
sented for some time.
Since 1937, the Union has bargained with a committee of the Mil-
waukee Warehousemen's Association, which represented the instant
' The Union moved to strike the Employer 's reply brief . As special leave of the Board
to file a reply brief was not obtained , the Union 's motion is granted . Peerless Yeast Com-
pany, 86 NLRB 1098 . Accordingly, the Employer 's brief was not considered by the Board.
100 NLRB No. 233.
227260-68-vol . 100-92