Printz Leather Co., Inc.

National Labor Relations Board - Board Decisions

Jun 20, 1951

94 N.L.R.B. 1312 (N.L.R.B. 1951)

1312 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
PRINTZ LEATHER COMPANY, INC. and EDMUND FABISZEWSKI
LOCAL 30, INTERNATIONAL FUR AND LEATHER WORKERS UNION OF THE
UNITED STATES AND CANADA (LEATHER DIVISION) and EDMUND FA-
BISZEWSKI. Cases Nos. 4-CA-371 and 4-CB-67. June 00, 1951
Decision and Order
On March 15, 1951, Trial Examiner Eugene E. Dixon issued his
Intermediate Report in the above-entitled consolidated proceeding,
finding that the Respondents had engaged in and were engaging in cer-
tain unfair labor practices and recommending that they cease and
desist therefrom and take certain affirmative action, as set forth in
.the copy of the Intermediate Report attached hereto. Thereafter, the
Respondents filed exceptions to the Intermediate Report and briefs
in support of their exceptions.
The Board 1 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, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner with the following additions and
modifications :
1. We find, like the Trial Examiner, that the union-security provi-
sions in Article 2 (a) of the 1948 contract between the Respondent
Company and the Union, and the corresponding provisions of the
1950 contract, were illegal,2 and that by retaining such provisions in
the 1948 contract after September 6, 1949, and by renewing them on
July 30, 1950, the Company violated Section 8 (a) (1), (2), and (3)
of the Act.; and that by joining the Company in the same conduct
the Union violated Section 8 (b) (1) (A) and 8 (b) (2) of the Acts
In view of this finding, it is not necessary to decide whether, as
found by the Trial Examiner, the Company or the Union violated the
Act with respect to the other contract provisions discussed in the Inter-
mediate Report.
2. We find, like the Trial Examiner, that the Company discharged
Fabiszewski on January 31, 1950, in violation of Section 8 (a) (3)
. '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 [Members Houston, Reynolds,
and Styles].
2 This provision provided that "all workers subject to this agreement shall . become
members of the Union within three ( 3) weeks of the date of hiring."
3 However, absent any specific evidence in the record that these provisions of the 1948
and 1950 contracts were enforced after September 6, 1949, we do not adopt the Trial
Examiner 's finding that the Company and the Union violated the Act by effectuating those
provisions after that date.
94 NLRB No. 209.
PRINTZ LEATHER COMPANY, INC. 1313
and (1) of the Act, and that the Union caused his discharge, thereby.
violating Section 8 (b) (1) (A) and (2) of the Act.
'We agree with the Trial Examiner that the Union's demand for
his discharge was prompted by Fabiszewski's refusal to cooperate in
the concerted effort of the other employees and the Union to limit pro-
duction. ' By complying with the Union's demand for Fabiszewski's
discharge, the Company permitted the Union to arrogate to itself the
Company's control over employment, and to use such control to ac-
complish discharges for discriminatory reasons. Under the circum-
stances of this case, we find that such conduct by the Company and the
Union violated the Act.
Order
Upon the entire record in this case, and pursuant to Section 10
(c) of the National Labor Relations Act, the National Labor Relations
Board hereby orders that:
1. The Respondent Company, Printz Leather Company, Inc., of
Philadelphia, Pennsylvania, its officers, agents, successors, and assigns
shall :
(a) Cease and desist from:
(1) Recognizing Local 30, International Fur and Leather Workers
Union of the United States and Canada (Leather Division), or any
successor thereto, as the representative of any of its employees for
the purpose of dealing with it concerning grievances, labor disputes,
wages, hours of employment, or other conditions of employment un-
less and until said labor organization shall have been certified as
the bargaining representative by the National Labor Relations Board.
(2) Performing or giving effect to its agreement entered into on
July 30, 1950, with Local 30, International Fur and Leather Workers
Union of the United States and Canada (Leather Division), or to
any modification, extension, supplement, or renewal thereof or to
any other contract agreement or understanding entered into with said
labor organization relating to grievances, labor disputes, wages, rates
of pay, hours of employment, or other terms or conditions of employ-
ment unless or until said labor organization shall have been certified
by the National Labor Relations Board.
. (3) Encouraging membership in Local 30, International Fur and
Leather Workers Union of the United States and Canada (Leather
Division), or in any other labor organization of its employees, by
discharging any of its employees or discriminating in any other
manner in regard to their hire or tenure of employment or any terms
or conditions of their employment.
4 Air Products, Incorporated, 91 NLRB 1381 ; • American Pipe and Steel Corporation,
93 NLRB 54.
953841-52-vol. 94-84
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(4) In any other manner interfering with, restraining, 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 collective bar-
gaining or other mutual aid and protection, and to refrain from any
or all of such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized by Section 8 (a)
(3) of the Act.
(b) Take the following affirmative action, which the Board finds
will effectuate the policies of the Act
(1) Withdraw and withhold all recognition from Local 30, Inter-
national Fur and Leather Workers Union of the United States and
Canada (Leather Division), as the representative of any of its em-
ployees, for the purposes of dealing with Respondent Company con-
cerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other terms or conditions of employment unless
and until said labor organization shall have been certified by the
National Labor Relations Board.
(2) Offer to Edmund Fabiszewski immediate and full reinstate-
ment to his former or a substantially equivalent position as a staker
without prejudice to his seniority or other rights and privileges, and
jointly and severally with the Respondent Union make him whole
for any loss of pay suffered by reason of the discrimination against
him in the manner set forth in the section of the Intermediate Report
entitled "The Remedy."
(3) Upon request, make available to the National Labor Relations
Board, or its agents, for examination and copying, all payroll records,
social security payment records, time cards, personnel records and
reports, and all other records necessary for a determination of the
amount of back pay due under the terms of this Order.
(4) Post at its plant at Philadelphia, Pennsylvania, copies of the
notice attached hereto and marked "Appendix A." 5 Copies of said
notice, to be furnished by the Regional Director for the Fourth Region,
shall, after being duly signed by Respondent Company's representa-
tive, be. posted by.it immediately upon receipt thereof and be main-
tained by it for a period of at least sixty (60) consecutive days there-
after in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by
Respondent Company to insure that said notices are not altered,
defaced, or covered by any other material.
If this Order is enforced by a decree of a United States Court of Appeals , there shall
be inserted before the words "A Decision and Order ," .the words "A Decree of the United
States Court of Appeals Enforcing."
PRINTZ LEATHER COMPANY, INC. 1315
(5) Notify the Regional Director for the Fourth Region in writing
within ten (10) days from the date of this Order what steps it has
taken to comply herewith.
2. Respondent Union, Local 30, International Fur and Leather
Workers Union of the United States and Canada (Leather Division),
its officers, representatives, agents, successors, and assigns shall :
(a) Cease and desist from:
(1) Causing or attempting to cause, by threatening strike action
or in any other manner, Printz Leather Company, Inc., its officers,
agents, successors, or assigns to discharge or otherwise discriminate
against employees because they refuse to engage, or refrain from
engaging, in concerted activities except in accordance with Section
8 (a) (3) of the Act.
(2) In any other manner restraining or coercing employees of
Printz Leather Company, Inc., its successors or assigns, in the exer-
cise 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 col-
lective bargaining or other mutual aid and protection, and refrain
from any or all of such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section
8 (a) (3) of the Act.
(b) Take the following affirmative action,,which the Board finds
will effectuate the policies of the Act:
(1) Jointly and severally with Printz Leather Company, Inc.,
make Edmund Fabiszewski whole for any loss of pay he may have
suffered by reason of the discrimination against him in the manner
_set forth in the section of the Intermediate Report entitled "The
Remedy."
(2). Post at its office at Philadelphia, Pennsylvania, and wherever
notices to its members are customarily. posted, copies of the notice at-
tached hereto and marked "Appendix B." 6 Copies of said notice, to
be furnished by the Regional Director for the Fourth Region, shall,
after being duly signed by Respondent Union's representative, be
posted by it immediately upon receipt thereof, and maintained by it
for a period of at least sixty (60) consecutive days thereafter, in con-
spicuous places including all places where notices to members are
customarily posted. Reasonable steps. shall be taken by, Respondent
Union to insure that such notices are not. altered, defaced, or covered
.by any other material. .
e If this Order is enforced by a decree of a United States Court of Appeals, there shall
fie inserted before the words "A Decision and Order," the words: "A Decree of the United
States Court of Appeals Enforcing."
1316 DECISIONS . OF NATIONAL LABOR RELATIONS BOARD
.(3) Notify the Regional Director for the Fourth Region in writing
within ten (10) days from the date of this Order what steps it has
taken to comply herewith.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Rela-
tions Board and in order to effectuate the policies of the National
Labor Relations Act, as amended , we hereby notify our employees
that:
WE WILL withdraw and withhold all recognition from LOCAL
30, INTERNATIONAL FUR AND LEATHER WORKERS UNION OF TIIE
UNITED STATES AND CANADA (LEATHER DIVISION), or any suc-
cessor thereto, as the representative of any of our employees, for
the purpose of dealing with us concerning grievances, labor dis-
putes, wages, hours of employment, or other conditions of em-
ployment unless and until said labor organization shall have
been certified by the National Labor Relations Board as the bar-
gaining representative.
WE WILL cease performing or giving effect to our agreement
of July 30, 19550, with LOCAL 30, INTERNATIONAL FUR AND LEATHER
WORKERS UNION OF THE UNITED STATES AND CANADA (LEATHER
DIVISION), or to any modification, extension, supplement, or re-
newal thereof, or to any other. contract, agreement, or under-
standing entered into with said labor organization relating to
grievances, labor disputes, wages, rates of pay, hours of employ-
ment, or other conditions of employment, unless and until said
organization shall have been certified by the National Labor
Relations Board.
WE WILL NOT encourage membership in LOCAL 30, INTERNA-
TIONAL FUR AND LEATHER WORKERS UNION OF THE UNITED STATES
AND CANADA (LEATHER DIVISION) , or in any other labor organiza-
tion of our employees, by discriminatorily discharging any of our
employees, or discriminating in any other manner in regard to
their hire or tenure of employment, or any terms or conditions
of employment.
WE WILL NOT in any other manner interfere with, restrain, or-
coerce our employees in the exercise of their right to self-organiza-
tion, to form labor organizations, to join or assist any labor organ-
ization, to bargain collectively in concerted activities for the
purpose of collective bargaining or other mutual aid or protec-
tion,. and to refrain from any or all such activities, except to the
PRINTZ LEATHER COMPANY, INC. 1317
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employ-
ment, as authorized by Section 8 (a) (3) of the Act.
WE WILL offer to Edmund Fabiszewski immediate and full
reinstatement of his former or substantially equivalent position
as staker without prejudice to any seniority or other rights and
privileges previously enjoyed and make him whole for any loss
of pay suffered as a result of the discrimination against him.
All our employees are free to become, remain, or refrain from
becoming or remaining , members in good standing of the above-named
union or any other labor organization except to the extent that this
right may be affected by an agreement in conformity with Section
8 (a) (3) of the amended Act.
PRINTZ LEATHER COMPANY, INC.,
Employer.
By ----------------------------------
(Representative ) (Title)
Dated --- -----------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
Appendix B
NOTICE TO ALL MEMBERS OF LOCAL 30, INTERNATIONAL Fun AND LEATHER
WORKERS UNION OF THE UNITED STATES AND CANADA (LEATHER
DIVISION), AND TO ALL EMPLOYEES OF PRINTZ LEATHER COMPANY,
INC.
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, by threatening strike action or in any other
manner, cause or attempt to cause PRINTz LEATHER COMPANY,
INC., its officers, agents, successors, or assigns to discharge or
otherwise discriminate against, its employees because they refuse
to participate, or refrain from participating, in concerted activi-
ties for the purposes of collective bargaining and other mutual
aid or protection, except in accordance with Section 8 (a) (3)
of the Act.
WE WILL NOT in any other manner restrain or coerce any em-
ployees Of PRINTZ LEATHER COMPANY, INC., in the exercise of
their rights to self-organization, to form, join, or assist labor or-
ganizations to bargain collectively through representatives of
their own choosing, to engage in concerted activities for the pur-
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pose of collective bargaining or other mutual aid or protection,
and to refrain from any or all of such activities, except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment,
as authorized by Section 8 (a) (3) of the Act.
WE WILL make Edmund Fabiszewski whole for any loss ,of pay
he may have suffered because of the discrimination against him.
LOCAL 30, INTERNATIONAL FUR AND LEATHER WORKERS UNION OF
THE UNITED STATES AND CANADA (LEATHER DIVISION),
Labor Organization.
By ---------------------------------
(Representative ) (Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof,
.and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
Harold Howal, Esq., for the General Counsel.
Moss & Moss, by Emanuel Moss, Esq.,'of Philadelphia, Pa., for the Company.
Saul C. Waldbaum, Esq., of Philadelphia, Pa., for the Union.
STATEMENT OF THE CASE
Upon a charge filed March 6, 1950, by Edmund Fabiszewski , an individual com-
plainant, alleging that Local 30, International Fur and Leather Workers Union
of the United States and Canada ( Leather Division ) had caused and that the
Printz - Leather Company had effectuated Fabiszewski 's discharge -in violation
of the Labor Management Relations Act (61 Stat . 136), herein called the Act,
the General Counsel of the. National Labor Relations Board, herein called the
General Counsel and the Board, respectively , issued his complaint dated Decem-
ber. 18, 1950, against the above Company and the Union , respectively , alleging
violations of Section 8 (a) (1), (2 ), and (3 ) and 8 ( b) (1) (A) and (2) of
the Act. Copies of the . complaint accompanied by a notice of consolidation and
hearing on the complaint were duly served upon the Respondents and Fabiszewski.
The complaint alleged in substance that ( 1) on or about January ' 31, 1950, in
violation of Section 8 (a) (1) and ( 3) and 8 (b) (1) (A) and (2 ) of the Act,
the Union caused and the Company did effect Fabiszewski 's discharge because he
refused to engage in or did refrain from engaging in concerted activities for the
purpose of collective bargaining or other mutual aid or protection , which the
Union had prescribed for its members who were employees of the Company;
and (2 ) on or about July 30, 1948, in violation of Section 8 (a) (1), (2), and
(3), and 8 (b) (1) (A ) and (2 ) of the Act , the Union and the Company-entered
into a contract of 2 years ' duration containing certain union-security clauses,
which at all times since have remained in full force and effect and have been
enforced and administered by the Respondents.
In their duly filed answers both Respondents denied the commission of unfair
labor practices . As to . the discharge of Fabiszewski ,. the Company 's ' answer
alleged that he was discharged on the advice of the Union to the effect that
PRINTZ LEATHER COMPANY, INC . 1319
Fabiszewski's coworkers refused to work with him and the discharge was
effectuated "in order to prevent a walkout of the other men in this particular
department and the eventual closing up of the plant in a very short period
of time." The Union's answer also alleged that Fabiszewski's discharge was
due to his coworkers' refusal to work with him because of his "unwillingness and
refusal to abide by the `Day's Work Task' as provided in Collective Bargaining
between the parties."
With respect to the union-security provisions of the collective bargaining
agreements, both Respondents alleged as a defense a savings or severability
clause in which the Union waives any provisions of the contract "made illegal
by the terms of the said Taft-Hartley law." 1
Pursuant to notice, a hearing was held on January 3, 1951, at Philadelphia,
Pennsylvania, before Eugene E. Dixon, the undersigned Trial Examiner, duly
designated by the Chief Trial Examiner. The General Counsel and the Respond-
ents were represented by counsel. All parties were afforded full opportunity
to participate in the case, to be heard, to examine and cross-examine witnesses,
and to introduce evidence. bearing on the issues.
At the hearing the Union's motion to amend its answer in a technical respect
was granted without objection. The General Counsel's motion to conform the
pleadings to'the proof in matters not of substance was also granted without objec-
tion.. All parties argued the issues orally on the record and briefs were duly
filed by both Respondents.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Printz Leather Company is a corporation organized under the laws of the
Commonwealth of Pennsylvania. At all times material herein it has operated
-a plant in Philadelphia, Pennsylvania, where it is engaged in the tanning of
skins.
During the course and conduct of its operations in the Philadelphia plant,
it annually purchases raw material' consisting primarily of pickled lamb and
-sheep skins valued at more than $80,000 of which approximately 75 percent
represents materials shipped to' its Philadelphia plant directly from States
other than the Commonwealth of Pennsylvania. Annually, the Company causes
finished products consisting chiefly of lamb and sheep skins, goat, and cabrettas
An an approximate value of $300,000, to be sold, transported, and delivered from
its Philadelphia plant of which amount approximately $250,000 represents
products sold, delivered, and transported to concerns located in States other than
the Commonwealth of Pennsylvania.
'With respect to that portion of the complaint alleging the execution, enforcement,
-and administration' of the pertinent union-security provisions, the Company answered
in the following manner :
Admitted, with the exception that the contract hereinabove referred to provides in
Article 18:
and then recites the savings clause relied upon by Respondents as a defense. In oral
.argument, after the evidence was in, the General Counsel contended that the Company's
answer in this respect constituted an admission requiring a finding that the Act had
been violated as alleged. The Company took exception to the General Counsel's position
contending that the answer did not constitute such an admission. The General Counsel
-then asked for and. was granted leave to adduce further testimony from Stewart Myers,
the Company's vice president. The Union then presented further testimony, through one
of its officials.
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is found that the Company's operations affect commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 30, International Fur and Leather Workers Union of the United States
and Canada (Leather Division), is a labor organization admitting to membership
employees of the company.
III. THE UNFAIR LABOR PRACTICES
A. The union-security provisions
On July 30, 1948, the Union and the Company entered into a collective bargain-
ing agreement of 2 years' duration which remained in effect until July 30, 1950,
when another 2-year agreement was entered into which continued in effect from
.that date through the time of the hearing.
The 1948 contract contained the following provisions which were contained
in the 1950 contract in substantially the same language :
Article 2 (a) The Employer agrees that all workers subject to this agree-
ment shall become members of the Union within three (3) weeks of the
date of hiring.
(b) The Employer will call to the. Union for workers as needed. by the
company. In the event that the Union is unable to supply such workers in
forty-eight (48) hours, then the employer has the right to fill such vacancies
after the forty-eight (48) hour request has been made to the Union.
Article 9 (b) The Employer agrees not to employ any person or persons
(except executives, supervisors, and office help) who were hired by another
company, at any time during a labor controversy, where members of the
International Fur & Leather Workers Union of the United States and
Canada were on strike.
No union-shop election under Section 9 (e) of the Act, and as required by the
proviso of Section 8 (a) (3) of the Act, was ever held.
The complaint alleges that by reason of their being in effect and enforced and
administered by the Respondent, the above provisions of the contracts violate
Section 8 (a) (1), (2), and (3), and 8 (b) (1) (A) and (2) of the Act. Re-
spondents apparently contend that the said provisions were never enforced and
that by reason of the following savings or severability provisions in both con-
tracts their inclusion therein is not violative of the Act :
The Union agrees that none of the clauses in this contract shall require the
Employer to do anything which is made illegal by the Taft-Hartley Law and
agrees to waive and hereby waives any provisions of this contract which is
made illegal by the terms of the said Taft-Hartley Law.
By its terms it is clear that the 3-week provision of the union-shop clause
of the contracts, even if sanctioned by an election of the employees as provided for
in Section 9 (e) of the Act, goes beyond the permissive limits of the proviso con-
tained in Section 8 (a) (3) of the Act? Moreover, it appears from the testi-
mony of Stewart Myers, vice president of the Company, that this provision of
the contracts was consistently adhered to from its inception in 1948.
The provision in. the contracts for. the preferential treatment in the hiring of
union members also exceeds the permissive limits to which union security may
2 Wire Products , Inc., 88 NLRB 730; Champion Blower d Forge Company, 88 NLRB
S68; Aeroil'Products , Company, Inc ., 86 NLRB 639; C. Hager & Sons Hinge Manufactur-
ing Company, 80 NLRB 163.
PRINTZ LEATHER COMPANY, INC. 1321
be legally extended.' This provision, while apparently not universally given
effect, was followed to some extent by the Employer.
The agreement not to hire anyone who had been hired by an employer during:
a strike involving that employer and the Union discriminates against and im-
poses a penalty on employees who have exercised their right to refrain from
assisting labor organizations guaranteed them in Section 7 of the Act, and thus
stands as a continuing coercion and restraint of them in the exercise of their
legal rights. Although it appears that no occasion ever arose to effectuate this
provision of the contracts, it is obvious that such a provision goes beyond the
scope of union security permitted by, the Act unless the terms of the contracts
specifically and clearly defer its application.
The law is well settled that where union-security provisions are incorporated
in a collective bargaining agreement which are not permissible under the Act
at the time they are agreed to by the parties, it is necessary that the deferment
of their application be clearly and unambiguously specified in the contract if,,
even though they are not enforced, they are to avoid violating the Act'
Thus, in holding ineffectual a severability clause in a 'contract providing that
any provision of the contract which is contrary to any Federal or State law is
null and void, the Board has said :
In the absence, therefore, of any specific ' clause expressly deferring the
application of the union-shop provision in the contract, we believe that the
only reasonable construction to be given the union-shop provision in its
relation to the severability clause is that the union-shop provision is effective
unless and until the proper tribunal determines that it is invalid. To hold
otherwise would we to sanction agreements designed to circumvent both
the spirit and express language of the statute. As this provision is appar-
ently operative until declared illegal its mere existence acts as a restraint
upon those employees desiring to refrain from union activities within the
meaning of Section 7 of the Act.'
Nor does the express statement in the contract of the intention to comply with.
the terms of the Act serve to make an otherwise ineffectual severability clause
effective.'
Here by their terms the entire contracts were made effective on specific
dates. There were no express or specific provisions deferring immediate ap-
plication of the union-security clauses in question. In my opinion the waiver by
the Union of any clauses in the contract which contravene the Act has no more
salutary effect than the provision declaring such clauses to be null and void.
Nor does a statement that the Employer is not required "to do anything which
is made illegal by the Taft-Hartley Law" differ substantially in its effect from
a statement that the parties intend to comply with the Act. In any event, the
actions of the parties in effectuating the union-shop and preferential hiring
clauses clearly indicate that the parties had no intention of deferring application
of the illegal provisions of the contracts.
'Hazel-Atlas Glass Company, 85 NLRB 1305 ; The Hofmann Packing Co ., Inc., ST
NLRB 601; Pacific Maritime Association , 89 NLRB 894; Waterfront Employers Associa-
tion of The Pacific Coast ( International Longshoremen 's & Warehousemen's Union),.
90 NLRB 1021.
4 The A. and M. Woodcraft , Inc., 85 NLRB 322; Unique Art Manufacturing Co.,
83 NLRB. 1250; Morley Manufacturing Company, 83 NLRB 404 ; Wyckoff Steel Company,
86 NLRB 1318; Sonotone Corporation, 90 NLRB 1236; and New York State Employers
Association, Inc., and Red Star Express Lines of Auburn, Inc., 93 NLRB 127.
b Unique Art Manufacturing Co., supra.
6 The Hofmann Packing Co. Inc., 87 NLRB 601.
1322 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD
It follows, therefore, that the severability clause in the contracts provides
no defense to whatever violations the union-security provisions disclose on their
face regardless of whether or not such terms-have been enforced.7
Thus, I find that from September 6, 1949,8 by the existence, effectuation, and
renewal of the union-shop and preferential hiring provisions of the contracts the
Employer lent illegal support and assistance to the Union in violation of Section
8 (a) (2) of the Act,' discriminated in regard to the terms and conditions of
employment of its employees, thereby encouraging membership in the Union in
violation of Section 8 (a) (3) of the Act;10 and by the foregoing conduct in-
terfered with, restrained, and coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act in violation of Section 8 (a) (1) thereof.
By joining the Employer in the same conduct, I find that the Union coerced
and restrained employees in the exercise of rights guaranteed in Section 7 of
the Act, thereby violating Section 8 (b) (1) (A)' thereof and attempted to
cause and did cause the Employer to discriminate against employees in violation
of Section 8 (a) (3) of the Act, thereby violating Section 8 (b) (2) thereof'
I further find on the basis of the above authorities that by the existence from
September 6, 1949, and the renewal of the contractual provision pertaining to
the nonhiring of employees who had failed to honor the Union's picket lines,
the Employer violated Section 8 (a) (1) and (2) of the Act and the Union
violated Section 8 (b) (1) (A) thereof."
B. The discharge of Fabiszewski
Fabiszewski was hired by the Respondent Employer on January 10, 1950, as
a staker. In addition to Fabiszewski, there were 5 or 6 other stakers working
for the Employer, all of -whom, including Fabiszewski, worked together in
what constituted the staking department. • Excluding Fabiszewski, whose, age
I would estimate to be not over 30, the average age.of the other stakers was
approximately 55.
Through the union steward and the first staker, Fabiszewski learned,-appar-
ently at the time he started working for the Employer, that the day's task work
on "whites" had been established at 20 dozen, but although no day's task work
on "suedes" had been established the men were operating on the basis of 4
dozen an hour.14 About a week after starting his employment, Fabiszewski
Began working on suedes almost exclusively. At about this time Frank Di
'Hazel-Atlas Glass Company, supr¢; Evans Milling Company, 85 NLRB 391; Reading
Hardware Corporation, 85 NLRB 610; Julius Resnick, Inc., 86 NLRB 38.
8 Although the parties did. not raise the applicability of the 6 months' limitation
imposed by Section 10 (b) of the Act between the occurrence of unfair labor practices
and the filing of charges, I shall limit my findings in accordance with the 6 months'
limitation established by'that section' of the Act. See Squirt Distributing Company,
92 NLRB 1667 ; Federal Stores Division of Speigel, Inc., 91 NLRB 647.
'Federal Stores Division of Speigel, Inc., supra; Julius Resnick, Inc., 86 NLRB 38;
Von's Grocery Company, 91 NLRB 504.
"Federal Stores Division of Speigel, Inc., supra; New York State Employers Associa-
tion, Inc., and Red Star Express Lines of Auburn,. Inc., 93 NLRB 127; Carlyle Rubber
Co.,'Inc., 92 NLRB 385.'
"New York State Employers Association; Inc., and Red Star Express Lines of Auburn,
Inc., supra.
12Supra. See also Acme Mattress Company, Inc., 91 NLRB 1010;. Pacific American
Shipowners Association (National ilnion of Marine Cooks 'and Stewards)., 90 NLRB 1099.
"New York State Employers Association,•Inc., and Red Star Express Lines of Auburn,
Inc., supra. Since the remedy herein will be the same whether or not the above provision
is deemed a violation of Section 8' (a) (3) and 8 (b)• (2) of the Act, I do not pass on
these questions. .
14 "Whites" and "suedes" were types of lambskins. - .
PRINTZ LEATHER COMPANY, INC. 1323
Vincenzo, one of the Union's two business agents, told him that "There is no set
rate on these here [suedes] so take it easy until we get a rate set with the
management." Di Vincenzo then went over to talk to the first staker and a
little later returned to Fabiszewski saying: "You know, take it easy until we
get a rate set; we are going to get the same rate here as we get in other plants." 36
Whether or not Fabiszewski was exceeding the production standard on suedes
"desired by the Union," it is clear that his coworkers were convinced that he was.
According to the testimony of Isadore Hermann, the union committeeman for the
stakers, upon being informed that such was the case, he went to Fabiszewski and
told him "that he should. work the same as other people worked in here."
Fabiszewski did not reply and turned away. As a result of this rebuff Hermann
never again mentioned the matter to Fabiszewski, but apparently others of the
stakers did mention it, although the testimony reveals no details. . .
On January 31, at about 7 a. in., when Fabiszewski was about to start work, he
,noticed that the other stakers were making no effort to commence their duties.
Then the foreman told Fabiszewski, "There is no work for you." Fabiszewski
asked for an explanation and the steward informed him, "Look you don't work.
The boys refuse to work with you." Fabiszewski asked why. The steward
replied, "You know why. After all, it looks like you are producing too much."
During this incident, some of the stakers, all of whom apparently were standing
at their machines observing the drama, shouted at Fabiszewski, "You ain't going
to produce no work around here, do away with our jobs."
At that point it appears that Di Vincenzo was called on the telephone by the
steward and requested to come to the plant immediately. Having a previous
engagement, Di Vincenzo informed the steward that he would not be able to get
there until about noon. He further told the steward that "under no condition
should that stoppage take place" until he had an opportunity to discuss it with
the men and stated that he was "ordering the men back 'to work." He further
requested to speak with the stakers' committeeman and got his assurance that the
men would continue working until he arrived at the plant. - Thereafter, "they"
took Fabiszewski to a staking machine on another floor and told him "you can
work, find out later in the day what the outcome is." 17
At about 11: 45 that morning, according to Fabiszewski's testimony,.Di Vincenzo
came to him and said, "Look, this is it., I guess you know what I mean" and left
without replying to Fabiszewski's request for an explanation. About an hour
later Di Vincenzo returned and told Fabiszewski, "Look, you and nobody else is
going to do anything around here. We are going to hold production down. Your
kind is not liked by anybody around here. We are dictating around here. We
are telling them what to do. You will know what I mean later on in the day."
He also told Fabiszewski. "You stay home and you know what I mean, if you
"Although Hermann testified in effect that at this time a day's task rate of 48 an
hour on suedes had been established between management and the Union, none of the
union officials so testified nor did Di Vincenzo deny the statement attributed to him about
the intention of establishing a rate on suedes ( based on Fabiszewski's credited testimony).
Stewart Myers , on cross-examination by the Union ' s counsel , testified that he believed
a rate had been agreed.upon for suedes, but could not "remember exactly. He added,
however, that 4 dozen an hour was accepted production. It appears that no standards
were contained in the 1948 contract defining a day's task work for any type, of task, but
that in the 1950 contract such standards appear, listing among others, 4 dozen suedes
per hour.
16 In his testimony Fabiszewski maintained that he had been producing the same amount
of suedes as the other individual stakers. Fabiszewski , as apparently were the other
atakers, was paid on an hourly basis.
11 The evidence does not show who "they" were, or who made this statement. Presum-
ably "they" refers to the foreman and the shop steward . I so find.
1324 DECISIONS OF. NATIONAL' LABOR RELATIONS BOARD
don't, we will pull the whole plant out." Fabiszewski remonstrated that he "was
a bona fide member of the Local," and was entitled to his rights as much as other
members. He also asked if he could see Di Vincenzo at the Local later in the day.
Di Vincenzo then said, "Look, don't come up to the Local because we have no use
for you."
In his testimony, Di Vincenzo referred to only one conversation with Fabis-
zewski on the day of the latter's discharge. His version of this conversation was
in substance that he asked Fabiszewski to explain the trouble he was having with
the other stakers. Fabiszewski told him, "I don't want to have anything to do
with those old S. & B's., They are a bunch of radicals. They are the kind of'guys
that are too damned old. The employer should not employ them. I got a chance
to make more money here and they are holding me down to four dozen an hour
pearls." Fabiszewski then asked that production on the line be increased, so he
could make more money pointing out that such,a course had been followed by
Di Vincenzo in connection with production on the Behr-Manning buffing machine.
Di Vincenzo admitted that such was the case and gave Fabiszewski a detailed
.explanation as to why it was done. Fabiszewski then asked Di Vincenzo to put
him on that operation saying that he had "some knowledge of it." Di Vincenzo
promised to try to persuade the Employer to put Fabiszewski on that operation,
warning him, however, that he would have to be able to handle the job and not
bluff his way on it. At the end of the conversation, Di Vincenzo reiterated that'
if the opportunity arose, he would recommend Fabiszewski for the Behr- Manning
operation, but added that first Fabiszewski, had "better go over and straighten out
with those fellows. They tell me they are not going to work with you."
Nowhere in his testimony did Di Vincenzo specifically deny making the remarks
attributed to him by Fabiszewski. While I was not too favorably impressed by
Fabiszewski as a witness, I have no hesitancy in believing the essentials of his
testimony, much of it unrefuted and undenied in the record, as against the glib
and patently incredible flavor of the testimony of Di Vincenzo, as well as of
Incollingo, as will appear below.
According to Fabiszewski's further undenied and credited testimony, at about
2: 45 that afternoon, Myers told Fabiszewski, "Sorry,.i have to lay you off. I
guess you know by now." Fabiszewski replied that he knew at 12: 45 who caused
the layoff, but nevertheless asked Meyers for an explanation. Myers replied that
'he 'knew of nothing other than what Fabiszewski himself knew and added that
"the work is all right, but I just have to lay you off." Pressed by Fabiszewski for
'further comment, Myers stated that it was unfair to both him and Fabiszewski
and advised him to take the matter up with the Board, but refused to put this
assertion in writing.
About a week later, according to Fabiszewski's testimony, he had a conversation
with Edward Incollingo, the Union's other business agent, at the latter's home.
Fabiszewski there denied the charge of producing too much. Incollingo stated
that investigation revealed the contrary and added "there is nothing I can do
about it." Incollingo also said, "When you go to the Labor Board , stress your
case. We don't give a hoot." 1$ Sometime during this conversation, Fabiszewski
asked if there was any possibility of getting a job in another plant.
Incollingo replied, "None whatsoever. You are done as far as the Local is
concerned."
Incollingo 's version of this incident , in addition to specifically denying the
last two statements, was that although Fabiszewski mentioned something about
11 At the time of this conversation Fabiszewski had already filed unfair labor , practice
charges with the Board. .
PRINTZ LEATHER COMPANY, INC . 1325
the Printz leather situation, most of the conversation was about other matters-
one being, a complaint Fabiszewski had in connection with Di Vincenzo's han-
dling of a grievance for Fabiszewski at his previous employment. In accentuat-
ing his denial that he told Fabiszewski there was no possibility of any other job,
Incollingo testified that he had tried to get Fabiszewski a job in two different
plants.19
Incollingo further testified that (1) he told Fabiszewski to take the matter
up through the shop steward; (2) he told Fabiszewski he knew nothing
about the matter "what the procedure should be"; (3) on two occasions he
notified Fabiszewski to take the matter up with the executive board of the
Union because he thought that was "the proper place for him to discuss whatever
his grievance was" ; and (4) he had not discussed Fabiszewski's case with
Di Vincenzo, prior to this conversation with Fabiszewski.
I find Fabiszewski's testimony of the conversation between him and Incollingo
more worthy of credence than Incollingo's. Accordingly, I credit Fabiszewski.
According to Di Vincenzo's direct testimony, when he arrived at the plant on
January 31, he discussed the matter of Fabiszewski with the shop steward
and then took it up with the stakers. They informed him that it was physically
impossible to work and compete with Fabiszewski because of his desire to exceed
the standard of production the stakers had established and that they feared
"some day we will find ourselves out of a job because the employer will say,
if so and so can do a certain amount of work, why can't you do it?" 20 Di
Vincenzo told the stakers that he believed their attitude toward Fabiszewski
was "entirely wrong" ; that Fabiszewski was a member of the Union in good
standing and that "we should try to solve this problem out" ; that he could not
adopt some suggestions they advanced ; that "because today if you say you
don't want to work with Fabiszewski because it is a question of production,
tomorrow you may say to me, `Frank, we don't want to work with so and so,
because he is a Republican or we don't want to work with so and so because
he is a Democrat or we don't want to work with so and so because he is a
Negro, or we don't want to work with so and so because of his political
affiliations.' "
The stakers answered that Di Vincenzo' s arguments were "sound and correct,"
but added that "There is do law to compel me to work alongside of a man that
I don't want to work with. I can quit my job" Di Vincenzo replied, "That
decision rests entirely upon you workers . . . I cannot support your position with
this worker." Di Vincenzo thereupon left the plant.
When he arrived at his office, according to Di Vincenzo's further testimony,
he had a call awaiting him from Myers. He returned the call and asked Myers
what his problem was. Myers stated that he had been informed "that unless
this worker goes, that the rest of the workers are going to stop working ; they
won't work with him tomorrow morning." Di Vincenzo told Myers that he
had "tried to convince these workers that that was the wrong attitude and
the wrong approach," but that he had been unsuccessful. Myers then asked,
"What am I going to do in this particular case?" De Vincenzo replied, "You are
the Employer: That is your problem, Myers then observed that if the
stakers did not work with Fabiszewski, it would mean a shutdown of the
10 There is no indication when this was supposed to have occurred , but it was clear
that the witness meant to leave the impression that it was after Fabiszewski ' s discharge
on January 31 and prior to the conversation between the two.
20 In Di Vincenzo 's testimony at this point , whether it be his own words or those of
the stakers , appears a statement of union policy regarding production limitations to the
effect that "it is a general practice among the leather workers not to increase g{'oduction
that they believe will be physically impossible for them to perform the day's work."
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entire plant and said to Di Vincenzo , "You have got to solve this problem."
Di Vincenzo replied , "I cannot solve a problem where workers absolutely refuse
to work with another man. I have done all that I could."
When asked if the Union would have supplied other stakers the following day.
if those employed had refused to work with Fabiszewski , Di Vincenzo answered,
"The policy of our union is that under no conditions should we permit perish-
able stock to take place in any employer , where regardless of what the dispute
may be, that we are to furnish and make every available effort to get the qualified
workers to take care of that particular article until it is removed from a.
perishable state."
As to the telephone conversation between Di Vincenzo and Myers , the latter
testified 21 that Di Vincenzo told him that he would "have to leave Mr. Fabiszewski
go because the men did not care to work with him" and "that if I brought in
Mr. Fabiszewski _ the following day, the department would not work ." Myers
told Di Vincenzo "that he gave me very little choice of what to do, because 1
didn't want to stop my plant from operating." On cross-examination, by the
Union's counsel , Myers testified that he did not recall Di Vincenzo telling him..
that he was powerless to compel the men to work with Fabiszewski and denied
that Di Vincenzo told him the decision of Fabiszewski 's discharge was his to
make as the employer.
In his testimony , staker Hermann, after . referring to the circumstances of
the stakers ' relationship with Fabiszewski leading up to their refusal to work
with him, testified that on the morning of January 31, apparently because they'
did not start their machines , the steward came over to investigate . Being
informed by Hermann what the trouble was, the steward got in touch with.
Di. Vincenzo and returned with the message , "Frank told me to tell - you; all
the stakers, to go back to work until he comes in." '
When Di Vincenzo arrived the stakers told him that they "absolutely refused
to work with" Fabiszewski . Di Vincenzo told the men to stay at work and
reminded them that there was perishable material that would be spoiled. The
stakers told him that "they would work all their skins out ," but that they would
not "work any more with him the next day." Di Vincenzo then left and the
stakers told the steward to let Di Vincenzo know that if Fabiszewski came in
the next day "we are not going to start our machines ." According to Hermann
no question of strike or work stoppage was discussed with IN Vincenzo ; the
stakers simply told him they were going to quit their jobs.
Staker Klein also testified that when Di Vincenzo arrived at the plant on
January 31 , he told the stakers to work but that "they all said they don't want
to work, they wouldn't work with a man-he don 't stick with them." So Di
Vincenzo and the shop steward were told "that they , if he [Fabiszewski] comes
in next morning , they got to shut down that is all."
Conclusions as to Employer's Violations
The complaint alleges that the Union caused and the Company effectuated
Fabiszewski's discharge' because he refused to engage in concerted activities
which the Union had prescribed for its members who were employees of the Com-
pany. It is conceded that Fabiszewski was a member of the Union in good
standing at the time of his discharge and that lack of membership in the
Union is not an issue in this case.
21 This testimony was elicited by the General Counsel from Myers as an adverse witness
under Rule 43 (b) of the Rules of Civil Procedure for the District Courts of the United
States.
PRINTZ LEATHER COMPANY, INC . 1327
Section 7 of the Act provides that:
Employees shall have the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purpose
of. collective bargaining or other mutual aid or protection, and shall also
have the right to refrain from any or all of such activities, except to the
extent that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as authorized
in section 8 '(a) '(3).,
In their adoption and observance of the standard of 48 suedes an hour, the
union .members engaged in a form of "concerted activity for their mutual aid
or protection." Whether or not this activity constituted a protected concerted
activity. under the Act,^3 there is no doubt that under Section 7 of the Act,
Fabiszewski had a right to refrain from such activity?'
While Myers testified that Di Vincenzo did not tell him why the stakers re-
fused to work with Fabiszewski, Myers did not testify that he did not know
the reason . , Since it appears that the foreman was present and took part in
the incident when the stakers initially refused to work with Fabiszewski and
shouted, at him that he was not, in effect,, going to produce them out of their
jobs, it is apparent and I find, that Fabiszewski's refusal to participate in
and abide by the standard promulgated and followed by the Union for the pro-
duction of suedes was known to the Employer as the reason the stakers refused
to work with 1+'abiszewski. Thus, by discharging him under the circumstances
herein, the Employer interfered with Fabiszewski in his exercise of rights guar-
anteed in Section 7 of the Act, thus violating Section 8 (a) (1) thereof.
Notwithstanding the fact that at the time of- his discharge Fabiszewski was
a member of the Union in good standing and that union membership as such
had nothing to do with his discharge, .1 find that by discharging him the
Employer discriminated against Fabiszewski in regard to his tenure of employ-
ment thereby demonstrating to employees that membership in the Union as
well as adherence to its policies was extremely. desirable, thus violating Section
8 (a) (3) of the Act .24
The fact that the Employer discharged Fabiszewski unwillingly and only to
forestall a cessation of operations that would have resulted from a disruption
of the production in the staking department is no defense.25
Violations by the Union
Having found as alleged by the General Counsel that by discharging Fabi-
szewski on or about January 31, 1950, the Employer violated Section 8 (a) (1)
and (3 ) of the Act, there remains to,be determined whether, as alleged by the
General Counsel, the circumstances of that discharge also gave rise to a viola-
tion by the Union of Section 8 (b) (1) (A) and (2) of the Act.
Elk Lumber Company, 91 NLRB 333.
There are only two provisions in the Act that may affect the right to refrain from
concerted activities neither of which affected Fabiszewski : ( 1) An agreement requiring
membership in a labor organization as a condition of employment as authorized in Section 8
(a) (3) of the Act, and (2) the preservation of the right of a labor organization to
prescribe its own rules with respect to the acquisition or retaining of membership therein
as provided in Section 8 (b) (1) (A) of the Act.
Z' American Pipe and Steel Corporation, 93 NLRB 54.
25H. M. Newman, 85 NLRB 725; N. L. R. B. v. Star Publishing Co., 97 F. 2d 465;
N. L. R. B . 'v. Gluck Brewing Co., 144 F . 2d 847 . The cases relied upon by Respondents
as a defense in this respect are not controlling. . They all involve discharges of employees
whose conduct , as distinguished from the conduct here, was deemed to be of a type not
worthy of the protection of the Act.
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union presents a basic defense which, viewed in the abstract, would seem
to absolve it of any liability for Fabiszewski's discharge 2' Yet, in spite of the
absence of direct evidence to the contrary,Y an analysis of the entire record
leaves the Union's explanation wanting and leads to the conclusion that it also
played an illegal part in Fabiszewski's discharge.
At the outset it is apparent that the Union had ample motive to desire the
elimination of Fabiszewski as an employee of the Printz Leather Company.
Pursuant to its policy of standardizing the quantity of production, the Union,
at the time of Fabiszewski's discharge, was in the process of crystalizing with
the Employer the standard it had decided upon for suedes. This was made
known to Fabiszewski whose subsequent conduct convinced his fellow em-
ployees that he was unwilling to cooperate with them in the attainment of the
end to which their concerted efforts were directed.
It is conceivable that the Union's reaction, as found herein, to this apostasy
on the part of Fabiszewski might not now militate against the Union's contention
herein had it not been for the unrealistic and implausible attitude the Union
would have me believe it took toward Fabiszewski at the time it became aware
of his . dereliction . Thus having just learned from a substantial number of
indignant union members that Fabiszewski had taken it upon himself to obstruct
and work against a fundamental union policy, we find Di Vincenzo, if his
testimony were to be believed, offering to recommend Fabiszewski for a more
lucrative job in the plant and telling the complainants that their attitude toward
Fabiszewski was "entirely wrong."
In finding, in effect, that such was not the case, the credible evidence shows
that not only did the Union have the motive but also the intent to eliminate
Fabiszewski as an employee . Thus we find union officials telling Fabiszewski
that the Union has "no use" for him ; that as far as the Local is concerned he
is through; that, in substance, -he is to be taught that he cannot oppose the
dictates of the Union; that he should give up his employment and that if he
fails to do so, the Union will strike the entire plant.
While I believe that Fabiszewski's fellow stakers as a last resort might have
quit their jobs rather than work with him, I do not believe that is what they
had in mind when they refused to start their machines in his presence on Janu-
ary 31 and when they discussed the matter with Di Vincenzo later that morning.
Thus, from Hermann's testimony that the steward was told by the stakers
to inform Di Vincenzo that if Fabiszewski came in the following day, the stakers
would refuse to start their machines, and from Klein's testimony that if Fabi-
szewski came in the next morning, "they got to shut down, that is all," it is
apparent that the stakers intended to press their opposition to Fabiszewski
by means other than quitting their jobs and that they were demanding and
expected the Union to support them to the extent, if necessary, of calling a strike.
26 Section 502 of the Act provides in part :
Nothing in this Act shall be construed to require an individual employee to
render . . . service without his consent, nor shall anything in this Act be construed
to make the quitting of his labor by an individual employee an illegli.l act ; .
The Union's defense is that the stakers threatened to quit their jobs and that the Union
not only was powerless to prevent such action but had no obligation to do so.
27 The courts and the Board have long recognized that direct evidence of unfair labor
practices is often impossible to obtain and that violations of the Act may be based on the
inferences supplied by the whole record. See Gould and Preisner ( Denver Building and
Construction Trades Council , et al.), 82 NLRB ' 1195; Universal Camera Corporation, 79
NLRB 379; Victor -Manufacturing and Gasket Company v. N. L. R. B., 174 F. 2d 867
(C. A.7) ; N. L. R. B. v. Greensboro Coca-Cola Bottling Company, 180 F. 2d 840 (C. A. 4)
N. L. R. B. v. Dixie Shirt Company, 176 F. 2d 969 (C. A. 4).
PRINTZ LEATHER COMPANY, INC . 1329
Di Vincenzo's warning to Hermann that a work stoppage would result in
material. spoilage, his refusal categorically to state whether or not he would
have supplied additional stakers if those in question had quit, and the implication
of his explanation in this connection that the Union would have supplied stakers
only for the purpose of continuing production until material "is removed from
a perishable state" indicates that in his handling of this matter on January 31
Di Vincenzo was (1 ) thinking in terms of an ultimate strike and ( 2) was pri-
marily concerned with keeping the men working only so long as was necessary
to comply with what he described as the union policy of never allowing an
employer to suffer spoilage no ,matter what the cause of the controversy might be.
It is in this vein that Di Vincenzo left the plant that day and returned to his
office where be found a request to call Myers, which he did.
While the versions of the two participants in this telephone conversation
differ somewhat in detail and scope, they present only one real conflict in Di
Vincenzo's denial that 'Myers told him that Di Vincenzo left Myers with little
choice in what to do about Fabiszewski. I credit Myers. I also accept Myers'
version that Di Vincenzo told him he would "have to leave Mr. Fabiszewski go
because the men did not care to work with him," and that Di Vincenzo further
indicated that if Myers brought Fabiszewski into work the next day, "the de-
partment would not work." 28
Even when considered apart from the Union's obvious concurrence in the ob-
jective of the stakers it would be difficult to avoid interpreting the conversation
between Di Vincenzo and Myers as an attempt on the part of the Union to cause
Fabiszewski's discharge. Nowhere in the testimony of either Di Vincenzo or
Dyers is there any indication that Di Vincenzo informed Myers or that Myers
understood that the stakers contemplated terminating their employment status
with the Company. On the contrary, the assertions that the Company would
have to let Fabiszewski go because the men did not care to work with him and
that if he worked the following day, "the department would not work" in effect
appear to be an official demand by the Union for Fabiszewski's discharge and
the threat of a strike or partial strike if the demand was not met. That Myers
so understood Di Vincenzo is apparent from his remark to Di Vincenzo that
the latter gave him little choice in what course of action to follow. I so find.
Moreover , I find on the basis of the entire record and the tenor of the above
conversation that Di Vincenzo was fully aware that the discussion had resulted
in the conviction on the part of Myers that the Union was officially demanding
Fabiszewski's discharge on the threat of strike action.
Under such circumstances, having made no effort to disabuse Myers of this
impression, I find that the Union attempted to cause and actually caused the
Employer to discharge Fabiszewski contrary to the provisions. of Section 8 (a)
(3) of the Act, thus itself violating Section 8 (b) (1) (A) and ( 2) of the
Act.`
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in Section III, above, occurring in con-
nection with the-operations of Respondent Company set forth in Section I,
above , have a close , intimate , and substantial relation to trade, traffic , and com-
merce among the several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
28 With respect to the resolution of credibility between Di Vincenzo and Myers several
contradictions appear in Di Vincenzo 's testimony on direct and cross -examination and the
record amply demonstrates his evasiveness . Myers' testimony , in contrast , both on its
face and in the manner in which it was given , impressed me as artless and forthright.
2v American Pipe and Steel Corporation , 93 NLRB 54 ; Carlyle Rubber Co., Inc ., 92 NLRB
385 ; Acme Mattress Company, 91 NLRB 1010.; Clara-Val Packing Company, 87 NLRB 703.
953841-52-vol. 94-85
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that Respondents, and each of them, have engaged in and
are engaging in unfair labor practices, it will be recommended that they cease
and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
It has been found that Respondent Company assented to unlawful union-
security clauses in an agreement with Respondent Union whereby it lent its
support to the Union in recruiting and maintaining membership. The Board
has held that .Sections 8 (a) (3) and 9 (e) were included in the Act to pre-
vent just such conduct and that it would not effectuate the purposes of those
sections merely to order eradication of the illegal provisions from the agreement
and permit a labor organization to continue to enjoy a representative status
strengthened by virtue of these illegal provisions 30 Accordingly, it will be
recommended that Respondent Company be ordered to withdraw recognition
from Respondent Union and cease giving effect to the agreement of July 30,
1950, with that organization, or to any modification, extension, supplement, or
renewal thereof, unless and until Respondent Union has been certified by the
Board. Nothing. in this recommended order, however, shall be deemed to re-
quire Respondent Company to vary or abandon those wage, hour, seniority,
or other substantive features of its relation with its employees established in
performance of said agreement, or to prejudice the assertion by employees of
any rights they may have under such agreement.
. It has been found that the Company, upon demand of the Union on January
31, 1950, discriminatorily discharged Fabiszewski because he refused to and
refrained from engaging in concerted activities which the Union had prescribed'
for its members who were employees of the Company, and that the latter thereby
restrained and coerced Fabiszewski and the employees of the Company in the
exercise of rights guaranteed them in Section 7 of the Act. Accordingly, it will
be recommended that the Company offer Fabiszewski immediate and full rein-
statement to his former or substantially equivalent position without prejudice
to his seniority or other rights and privileges." It will be further recommended
that the Company and the Union jointly and severally " make him whole for any
loss of pay he.may have suffered by reason of the discrimination against hint by
payment of a sum of money which shall be computed on the basis of each sepa-
rate calendar quarter or portion thereof during the period from his discharge
to the date of a proper. offer of reinstatement." The quarterly periods shall begin
with the first day of January, April, July, and October. Loss of pay shall be
determined.by deducting from a suns equal to that which Fabiszewski would
normally have earned for each quarter or portion thereof, his net earnings,`
if any, in other employment during that period. Earnings in one particular
10 Julius Resnick. Inc., 86 NLRB 38; Von's Grocery Company, 91 NLRB 504.
"In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position wherever
possible, and if such position is no longer in existence, then to a substantially equivalent
position." See The Chase National Bank of the City of New York, San Juan, Puerto
Rico Branch, 65 NLRB 827.
32 H. M. Newman, 85 NLRB 725.
13 Since it would be inequitable to the Union to permit the amount of its liability to
increase despite the possibility of its willingness to cease its past discrimination in the
event the Employer should fail promptly to offer renstatement to Fabiszewski, it is recom-
mended that the Union terminate its liability for further accrual of back pay to Fabiszewski
by notifying the Employer in writing that the Local has no objection to his reinstatement.
The local not to he liable for any back pay accruing 5 days from the giving of such notice.
Childs Company, 93 NLRB 281.
31 Crossett Lumber Company, 8 NLRB 440.
BRYAN MANUFACTURING COMPANY 1331
quarter shall have no effoet upon the back-pay liability for any other quarter.
It will also be recommended that the Company be ordered to make available to
the Board, upon request, payroll and other records to facilitate the computation
of the amount of back pay due.36
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Union, Local 30, International Fur and Leather Workers Union
of the United States and Canada (Leather Division), is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent Company has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act.
3. By contributing support to Local 30, International Fur and Leather Workers
Union of the United States and Canada (Leather Division), Respondent Com-
pany has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (2) of the Act.
4. By discriminating with respect to the hire and tenure of employment of
Edmund Fabiszewski thereby encouraging membership in Respondent Union,
Local 30, International Fur and Leather Workers Union of the United States and
Canada (Leather Division), Respondent Company has engaged in and is engag-
ing in unfair labor practices within the meaning of Section 8 (a) (3) of the
Act.
5. By causing Respondent Company to discriminate in regard to hire and tenure
of employment in violation of Section 8 (a) (3) of the Act, the Union has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (b)
(2) of the Act.
6. By restraining and coercing employees in the exercise of rights guaranteed
in Section 7 of the Act, Respondent Union has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (b) (1) (A) of the
Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from-publication in this volume.]
'IF. W. Woolworth Company, 90 NLRB 289.
BRYAN MANUFACTURING (A)MYANY, A CORPORATION and INTERNA-
TIONAL BROTHERHOOD OF ELECTRICAL WORKERS, A. F. L. and EM-
PLOYEES' BARGAINING C(IMMI'flEE, PARTY TO THE CONTRACT . Cases
Nos. 13-CA-373 and 13-RC-782. June 20, 1951
Decision and Order
On February 21, 1951, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceedings, finding that
94 NLRB No. 187.