Queens-Premier-Williams Fur Dressing Corp.

National Labor Relations Board - Board Decisions

Nov 14, 1950

92 N.L.R.B. 42 (N.L.R.B. 1950)

In the Matter of QUEENS-PREMIER-WILLIAMS FUR DRESSING CORP. and
SAMUEL' TANDIORIO
In the Matter of LAMB AND RABBIT WORKERS UNION, LOCAL 85, INTER-
NATIONAL FUR AND LEATHER WORKERS UNION OF THE UNITED STATES
AND CANADA, CIO 1 and SAMUEL TANDIORIO
Cases Nos. 2-CA-326 and 2-CB-98.-Decided November 14,1950
DECISION AND ORDER
On June 7, 1950, Trial Examiner Charles W. Schneider issued his
Intermediate Report in the above-entitled proceeding finding, as is
set forth in detail in the copy of the Intermediate Report attached
hereto, that neither of the Respondents had engaged in or were eiigag-
ing in the unfair labor practices each was respectively charged with
in the complaint. He therefore recommended that the proceeding be
dismissed. Thereafter, the Charging Party filed exceptions to the
Intermediate Report and a supporting brief; and the Respondent
Union filed a memorandum in support of the order recommended by
the Trial Examiner. The Charging Party also requested oral argu-
ment. That request is hereby denied, as the briefs and record in
this case adequately present the positions of the parties.
The Board 2 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed.
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner
with the addition of the following comments on the jurisdiction issue.3
We agree with the- Trial Examiner that the -operations of. the Re-
spondent Company, as disclosed by the entire record in the case, sub-
stantially affect commerce within the meaning of the Act, and that,
accordingly, the Board has jurisdiction in this case.
' As amended at the hearing.
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 Reynolds and Murdock].
'As is noted in the Intermediate Report, both Respondents denied the Board's jurisdic-
tion in answering the complaint.
92 NLRB No. 14.
42
QUEENS-PREMIER-WILLIAMS FUR DRESSING CORP. 43
The jurisdictional facts, set forth in more detail in the Intermediate
Report, show, among other things, that the services performed by
the Respondent Company represent an essential step in the processing
and/or manufacture of furs into a saleable product.. It shows fur-
ther, that of the Respondent's total annual income for such services,
an amount far in excess of $50,000, reflects income derived from the
sale of services to numerous fur coat and fur trimming manufacturers
who ship individually, more than $25,000 worth of their respective fur
products per annum to extra-State destinations.
In view of the foregoing, and in accordance with our decision in the
Hollow Tree Lumber case,4 we find, further, that it will effectuate the
policies of the Act to exercise jurisdiction here. We agree with the
Trial Examiner, however, that the record does not establish that the
Respondents violated the Act as charged, and we shall therefore dismiss
the complaint.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint be, and it hereby is,
dismissed.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Vincent M. Rotolo, Esq., for the General Counsel.
Max Zucker, Esq., for the Company.
Witt & Cammer, by Harold Cammer, Esq., for the Union.
Snitow & Snitow, by Melvel W. Snitow, Esq., for the Complainant.
Upon charges filed by Samuel Tandiorio, an individual complainant , on July
1, 1948, alleging that Lamb and Rabbit Workers Union, Local 85, International
Fur and Leather Workers Union of the United States and Canada , CIO,' the
Union , had caused , and that Queens -Premier-Williams Fur Dressing Corp., New
York , New York, the Company, had effectuated, Tandiorio's discharge because
he would not authorize a checkoff of union dues the General Counsel issued his
complaint dated June 10, 1949, against the Company and the Union, Respondents
herein , alleging violations of Section 8 (a) (1), 8 ( a) (3) ; 8 (b ) (1) (A),
and 8 (b) (2) of the Act (61 Stat. 136 ). Copies of the complaint , accompanied
by notice of consolidation , of the charges , and hearing on the complaint, were
duly served upon the Respondent and Tandiorio.
With respect to the unfair labor practices the complaint alleged that about
June 25, 1948, the Respondent Union caused , and the Respondent Company did
effect, the discharge of and subsequently refused to reinstate , Tandiorio , because
Tandiorio had refused to assist the Union or had engaged in activities hostile
to it. Answers were duly filed by both Respondents denying the jurisdiction of
the Board and the commission of unfair labor practices.
' Hollow Tree Lumber Company, 91 NLRB 635.
' As amended at the hearing.
44 DECISIONS OF' NATIONAL : LABOR . RELATIONS BOARD
Upon due notice a hearing was held at New York, New York, on October 4, 5,
6, and 7, 1949, before the undersigned Trial Examiner. All parties were repre-
sented by counsel, participated in the hearing, and were afforded full.opportunity
to examine and cross-examine witnesses, to introduce evidence bearing on the
issues, to argue the issues orally upon the record, and to file briefs and/or
proposed findings. Subsequently a memorandum brief was submitted by the
General Counsel on the question whether the Respondent Company was engaged
in or its activities affected commerce within the meaning of the Act.
At the close of the hearing both Respondents moved to dismiss the complaint
on, inter alia, jurisdictional or commerce grounds.' On November 22, 1949, the
Trial Examiner issued an Order in which, after reviewing the jurisdictional
facts developed at the hearing he granted these motions of the Respondents.
Thereafter the General Counsel and the complainant filed with the Board a
request for review of this Order, and in the alternative requesting reopening of
the record for the purpose of adducing additional evidence with respect to the
interstate operations of the Respondent Company's customers. On January 18,
1950, the Board issued its Order directing that the record be reopened and
further hearing held with respect to the nature and extent of the operations of
the Respondent Company's customers with particular regard to whether the
products of such customers found their way to purchasers outside the State of
New York. The Board's Order further directed such report by the Trial Exam-
iner as the entire record warranted.
On May 5, 1950, the parties filed with the Trial Examiner a stipulation and
supplemental stipulation incorporating evidence on the issues referred to in the
Board's remanding Order. Additionally, the stipulation waived further hear-
ing, consented to the incorporation of such evidence into the record, and author-
ized the Trial Examiner to declare the hearing closed. On the same day the
Trial Examiner by telegraphic order directed that the stipulations and their
accompanying data be received into evidence, ordered the hearing closed, and
granted the parties to May 22, 1950, to file briefs and/or proposed findings and
conclusions.. Memorandum briefs directed to the interstate commerce issue
have been received from the General Counsel and the Company and considered.
Upon the entire record in the case, and from observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT COMPANY
• Queens-Premier-Williams Fur Dressing Corp., is a fur tanner and dresser. It
operates a plant in Brooklyn, New York, out of the operation of which the
instant ease arose. So far as the record discloses it does not own or operate any
other plants. The Company's function, essential to the manufacture of fur
garments, is to tan and dress raw fur skins for fur dealers and manufacturers.
This operation is of a service nature. The Company does not own or purchase
the skins which it processes. They are the property of the dealer or manufac-
turer. The skins are of the following types : Fox, beaver, anink, sable, marten,
otter, and rabbit.
In 1949-the Company had 239 customers. Its income in that year from its
operations was $718,294.23, and it employed about 115 employees. The dealers
and manufacturers for whom the Company processes are mainly located in New
2 Other motions by the Respondents to dismiss on the merits are disposed of by findings
and conclusions hereinafter.
'QUEENS-PREMIER-WILLIAMS FUR DRESSING CORP. -' 45
York City. , Only about 1 percent of the furs are received by the Company from,
or shipped by the Company to, points outside New York City. The skins are
"normally picked up by company trucks at the place of business of the dealer or
manufacturer in New York City, processed by the Company, and then returned
to the dealer or manufacturer.
The main materials used by the Company in its operations consist of sawdust,
'salt, alum, sulphuric acid, grease, and starch. Total purchases of materials
and supplies in 1948 amounted to $121,162.30. Thirteen plus percent of this
total, in dollars terms $16,819.05, was purchased from sources located outside
the State of New York.
The original source of the furs processed by the Company may be either from
within or outside the State of New York. A manufacturer may purchase the
skins from sellers outside the State, or he may purchase them from dealers or
brokers in New York ; usually New York City. In either case the manufacturer
can buy the skins before they are dressed, sorted, and graded, and have these
operations performed himself ; or the dealer may break the skins from their
original package, have them processed, sort, and grade them as to quality and
other, relevant characteristics, and then display them for sale to the manufac-
turer.
Some 27 of the Company's 239 customers, accounting for $300,000 of its income,
made total purchases of furs in 1949 in the amount of $10,165,043. A substantial
portion of these furs ultimately find their way into the stream of commerce
and are transported outside the State of New York ; either by way of direct
sale to out-of-State purchasers or by sale to New York purchasers having outlets
or customers outside the State.
A selection of some 9 of the Company's customers drawn from testimony at
the original hearing discloses that during 1948 and 1949 these firms sent ap-
proximately 105,000 skins to the Company valued at about $680,000. By number
75 percent and by value 21 percent of these goods represented out-of-State pur-
chases by these customers.
Since the Company performs essential processing services for companies whose
products, presumably including those processed by the Company, find their
way into commerce in substantial proportion, it is found that the Company's
operations affect commerce within the meaning of the Act.
IT. THE LABOR ORGANIZATION INVOLVED
Lamb and .Rabbit Workers Union, Local 85, International Fur and Leather
Workers Union of the United States and Canada, CIO, is a labor organization
admitting to membership employees of the Company:
III. THE ALLEGED UNFAIR LABOR PRACTICES'
Preparatory to dressing, furs are soaked by the Company in vats containing
,a. saline solution. After the proper amount of soaking the skins must be im-
9 The following findings are based on the testimony given by witnesses for the parties
or documentary evidence. Much of the testimony is undisputed. On some issues there are
apparent conflicts which have been resolved in accordance with my judgment as to which
version seems more credible in the light of surrounding circumstances, other evidence,
and observation "of the witnesses. ' Some of the testimony, as related in the record, is
confusing and sometimes seemingly contradictory ; and the sequence of events is at times
obscure. This is partially attributable to language and reportorial difficulties. Some of
the witnesses were not adept in the use of the English language and their narrative powers
wore not always equal to the task of conveying precise meaning in that idiom.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mediately dressed, otherwise they will be spoiled . The events herein took place
mainly in , and involve only, the rabbit fleshing department of the Company's
plant. Here rabbit skins are fleshed after they are removed from the soaking
vats.
Seventeen to twenty persons are employed in this department . All are mem-
bers of the Union, which has represented them for a number of years. At the
time of the events herein , June 1948 , the Company and the Union were operating
under a collective bargaining agreement, made June 3, 1947 , and expiring May
31, 1949. This contract required employees to be members in good standing
with the Union . It further provided for the checkoff of union dues by the
following provision :
The Employer will deduct from the wages of the members of the Union
now employed or who shall hereafter be employed by the said Employers, all
sums of money which may become due to the Union from such members
as initiation fees, dues and assessments , and-to turn over such moneys forth-
with to the Union.
The principal persons concerned in the events in question were Samuel
Tandiorio , the complainant , William Esikoff , the Company 's treasurer and
operating head, Julius Strauss , the Union 's shop chairman , and Michael Hudyma,
the Union 's business agent. Tandiorio and Strauss were employees of the Com-
pany, Hudyma was not.
In June 1948 Tandiorio was, and since sometime in 1947 had been, a flesher
in the rabbit flesher department . He was a competent and satisfactory work-
man with long prior experience in the industry and had been a member of the
Union for many years . At one time he had been the Union 's business agent,
the post now held by Hudyma . He had also some years before been on the
Union 's executive board.
Tandiorio is a man of vigorous personality and views , more articulate and
with a seemingly greater fund of general knowledge than many of his colleagues.
These factors , along with native intelligence , a rugged sense of personal inde-
pendence, an evident taste for rough and tumble debate, and an apparent
tendency to combativeness and to dogmatic expression , combined to make
Tandiorio an outstanding and at times impolitic personality among the em-
ployees in the shop . Possessed of a lively mind, he frequently precipitated dis-
cussion in the plant on any available subject, and then generally took a position
diametrically opposed to that of his fellow employees . Often he would de-
liberately provoke debate by the expression of views certain to meet combined
opposition , opposition which his methods of attack sometimes whipped into
personal animosity . With his somewhat more sophisticated intellectual equip-
ment, Tandiorio would heap ridicule upon his opponents , to the accompaniment
of abusive and provocative language . The impression left is that he was not
often worsted . In sum, in his relations with his fellow employees , Tandiorio
seems to have been a kind of intellectual but extremely undiplomatic catalyst.
These incidents left a residue of resentment among some employees toward
Tandiorio . Despite all this, because of his lively personality , he was not per-
sonally disliked . The older employees seemingly regarded him as an acerbic
Puck, whom they hoped that time would ultimately mellow'
To some extent , apparently , certain of these traits had been characteristic
of Tandiorio for many years , and had led to trouble in other shops. Because of
4 The findings in this paragraph are drawn from testimony of the witnesses , including
Tandiorio , and my own impression of Tandiorio based on observation.
QUEENS-PREMIER-WILLIAMS FUR DRESSING CORP. 47
a supposed tendency to be domineering , he had been removed from his position
on the Union 's Executive Board. Because of his conduct toward employees at
another shop he had been fined by the Union in 1945 or 3-946; a fine which
Tandiorio refused to pay, saying that he was "not going to pay those morons,"
and which the Union apparently did not press . These experiences seem to have
left Tandiorio resentful toward the Union. According to his testimony, after
losing his office he largely ceased to attend general union and shop membership
meetings and even when he did attend he did not voice any grievances. But
though he did not voice his grievances to or within the Union , Tandiorio aired
them frequently and explosively to his fellow employees in the plant.
In addition , Tandiorio developed a dislike for Business Agent Hudyma, a dis-
like which , Tandiorio testified , stemmed from Hudyma's failure to keep a prom-
ise to get Tandiorio a certain job. Characteristically Tandiorio expressed his
rancor to his fellow employees , many imbued with a deep sense of union loyalty
and respect for their elected representatives , in terms certain to provoke antag-
onism atnong them. These expressions became most pronounced after Tandiorio
had been employed by the Company in 1947. He would refer to Hudyma, for
example, as a "dirty Polack," and " incompetent."
Tandiorio 's speech was often more than merely derogatory ; it was frequently
lurid. In an industry not distinguished , according to Tandiorio 's testimony,
for decorous language , his manner of expression was sufficiently colorful to
warrant describing it as being extravagantly obscene. The Union he referred
to as "this-- Union."' At times Hudyma would call at the plant on union
business . About May 1948, as Hudyma was leaving the shop, Tandiorio called
after him , in tones unaudible to Hudyma but loud enough to be heard by the
employees , "Goodby, you dirty -." 8
On this occasion , according to Julius Strauss, the Union's shop chairman, the
men were so incensed that they considered taking physical action against Tan-
diori. Tandiori , however, brandished a bottle and threatened to "break the
bead" of anyone who came near him.'
Tandiorio 's coworkers and Julius Strauss, union shop chairman , sought to
have Tandiorlo take his differences to the union office and the Union Executive
Board and talk them out , but Tandiorio declined . Strauss chided him for his
attitude and warned Tandiorio that the employees might take some action
against him. Some employees demanded that Chairman Strauss and Frank
DePrisco , a fellow employee and treasurer of the Union , hale Tandiorio before
the Union Executive Board on charges of abuse of fellow members . DePrisco,
however, demurred , on the ground that Tandiorio was a friend of his.' Anthony
DeLucia, employee and executive board member , did however , rebuke Tandiorio
several times . On the occasion of Tandiorio 's remark about Hudyma, DeLucia
reproved him. Tandiorio replied, "-9 him ," ( Hudyma ) and in effect dared
DeLucia to take him before the Executive Board, a dare which he repeated on
other occasions. DeLucia indicated that some day he would ; to which Tandiorio
5 An obscene adjective relating to sexual conduct.
8 An obscene epithet denoting addiction to certain unorthodox sex practices.
7 The finding as to the bottle incident is based on the testimony of Strauss and employee
Anthony DeLucia , which is credited . Tandiorio denied brandishing a bottle. He further,
testified In explanation of his parting remark to Hudyma that another employee had in
effect dared him to make some comment on Hudyma 's leaving.
8 Ironically, early in June 1948, Tandiorio accused DePrisco of stealing $500 from the
union treasury.
'An obscene verb.
48 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
responded, the Executive Board," saying- further -that he would "not
come if you drag me."
These difficulties were known to company officials. William Esikof.,the. Coln-
pany's treasurer, had had reports about Tandiorio's conduct and had himself
heard Tandiorio using abusive language toward employees. Individual men
-had even complained to Esikoff. The latter, however, declined to take any
action, saying, in effect, that so long as the work was done, it was the men's
affair and he would not interfere."
After the Hudyma incident, according to Strauss' credited testimony, some
employees said that they would not work with Tandiorio. Strauss then took
the complaint to Hudyma. The latter told Strauss to ignore Taudiorio. "Tol-
erate him," Hudyma said, "we know what kind of an individual lie is. Maybe
some day he will come to his senses." When Strauss replied that, if the Union
did not take some action the men might act themselves, Hudyma warned him
against that, saying further, "leave him alone. . . . He was a good man before
and lie may come to. his senses again." Striiuss, on Hudyma's suggestion, per-
suaded the men to drop the matter. But, according to the credited testimony
0f Strauss and other employees, instead of ameliorating, Tandiorio's conduct
became sharper and his attitude more querulous; until in June 1948 events
came to a climax.
The Checkoff Authorizations
The contract between the Company and the Union, executed June 3, 1947,
and expiring May 31, 1949, required the Company to checkoff union dues from
employees' wages during the term of the agreement.
Subsequent to the execution of this contract, on June 23, 1947, Congress
enacted the Labor Management Relations Act of 1947. Section 102, Title I of
the statute, the title containing the National Labor Relations Act, contained
a savings clause providing, inter tdia, that Section 8 (a) (3) and S (b) (2) of
the Act should not make an unfair labor practice the performance of a con-
tractual obligation under an unrenewed and unextended collective bargaining
agreement made prior to the enactment of the Act, if such performance would
not have been an unfair labor practice under Section 8 (3) of the Wagner Act.
However, Section 302, Title III, of the statute, under pain of criminal penalties,
forbade inter aria, the deduction of union clues from employees' wages after
fitly 1, 19118, except upon written authorization executed by the individual
employee. The conduct prohibited by the provisions of Title III was not de-
clared to be an unfair labor practice and the enforcement of those provisions
was not committed to the National Labor Relations Board.
It is thus seen that while continuance of the deduction of Tandiorio's union
dues without his individual authorization after July 1, 1948, might not have
constituted an unfair labor practice under Section 8 of Title I (a question
unnecessary here to decide), it could conceivably have constituted- a violation
of Section 302, Title III, punishable by $10,000 fine and 1 year's imprisonment.
Presumably in contemplation of the prospective operation of Section 302
beginning July 1, 1948, Shop Chairman Strauss, on Time 14, 1948, distributed
forms among the employees requesting their individual authorizations for the
continuance of the dues checkoff for the duration of the unexpired contract.
1° Footnote 9, supra.
In explanation of Esikoff's response it may be noted that the men largely ran the
department themselves and were rarely directly supervised.
QUEENS=1 REMIE t=WIL'LIAMS FUR DRESSING CORP. 49
`GVithii the next several days all employees signed the authorization except
Tandiorio . When Strauss presented the form to Tandiorio the latter refused
td sign, telling Strauss that he would "sign nothing for the Union," that under
the law he did not have to be a member of the Union, and that he "wanted to be
out of it." During the next 10 dais Strauss persistently, but courteously,
attempted to persuade Tandiorio to execute the authorization, without success.
According to Strauss' credited testimony, Tandidrio's response was "throw me
out of the Union." Other employees also attempted to persuade Tandiorio,
equally unsuccessfully. Shop Chairman Strauss reported Tandiorio's refusal
to Hudyma and asked what was to be done about it. Hudyma instructed him
not to do anything. "Leave him alone," lie told Strauss, "maybe he will change
hia mind."
The situation continued thus without change until June 24. On that day
Strauss again. approached Tandiorio and gave him another authorization card,
again requesting that he sign it. Tandiorio again refused. Struss nevertheless
left the card with Tandiorio. When he ieturned later, Tandiorio told him that
he "did not want to belong to this 12 Union." He then tore up his union book
and threw it in Strauss' face, at the same time daring Strauss to "kick" him
out of the Union, stating that that was what he wanted. Tandiorio then took
a piece of chalk and wrote on either the wall or his bench "F- the Union." 13
The testimony is confused as to the exact sequence of events thereafter on
the day of June 24 but as nearly as can be reconstructed from differing
accounts, what happened is about as follows :
After Tandiorio had torn up his union book he became involved in an argu-
Mont with DeLucia, iii the course of which Tandiorio in effept dared DeLucia to
have him thrown out of the Union; and DeLucia retorted that "the time would
come" when he would do so. The situation evidently became somewhat turbu-
lent, for sometime later company treasurer Esikoff came down from his office,
exhorted the men to calm down, and asked what the trouble was about.
Tandiorio excited according to Esikoff, told Esikoff that he did not want to pay
his union dues and that the Union was attempting to stop him from working
because of his refusal. The men, to the contrary, told Esikoff, in substance, that
Tandiorio's conduct was offensive and that they would not tolerate it any longer.
During the conversations Tandiorio verbally attacked-the employees in abusive
and profane terms. He finally told Esikoff in the presence of the men, that if
he could get out of the Union he would work for 25 cents per hundred less than
the other employees. Esikoff, concluding that Tandiorio was too angry to per-
mit further discussion, then left.14
Tandiorio's final comments to Esikoff, and his reference to undercutting the
wage scale, left the ben in an ugly mood. During the afternoon they discussed
the situation among themselves and finally laid down their tools and ceased
working. While Tandiorio testified that this cessation was pursuant to an
12 See footnote 5, supra.
mm Tandiorio testified that when Strauss gsive him the card on June 24 Strauss stated
that Tandiorio must sign it, or the Union would stop him from working, and that Strauss
thereafter instructed the skin boy not to bring skins to Tandiorio to work on. Strauss'
testimony to the contrary is credited.
14 Tandiorio admitted having made this statement but placed it at 2 or 3 weeks before
June 24. The testimony of Esikoff and other employees places it during the above con-
versation. It is concluded that Tandiorio's recollection is in error. Tandiorio's explanation
for having made the remark was that it was "humorous" and made only to arouse resent-
ment among the men. The evidence reveals that in this purpose he succeeded.
929979-51-vol. 92-5
50. DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
order by Strauss, the preponderance of the testimony establishes that the men-
ceased working spontaneously in resentment over Tandiorio's statements to
Esikoff. They informed Strauss that they would not work any longer with
Tandiorio. There is no substantial evidence of union direction or incitement
of the work stoppage. Strauss and other members of the union shop committee„
upon instructions from the men, then went to Esikoff's office and informed
him that because of Tandiorio's actions the men refused to work with him any
longer. Esikoff protested, pointing out that the contract had a no-strike clause,
and that valuable furs would be spoiled unless the work continued. Strauss
and Esikoff attempted to contact Business Agent Hudyma but the latter was.
out of town, in Gloversville, New York. Esikoff got in touch with his lawyer,
Max Zucker, who exhorted Strauss and other union officials not to permit the
cessation to continue. Accounts are differing and confusing as to what action
was finally decided upon, but it seems most probable and it is found, that Esikoff
and the Committee finally agreed that the men should continue working that
day, and that if Tandiorio insisted on working the next day, Esikoff would
stop him. In any event, the Committee reported substantially that to the men.
and persuaded them to resume working.
That evening Tandiorio, Esikoff, and other company officials conferred in
Esikoff's office. The Company's officials sought to persuade Tandiorio to work
out his differences with the men, and, informed by Tandiorio that the Union
wanted him to sign the check-off authorization, urged him to do it. Here again
the exact details of the conversation are somewhat obscure, but it seems fairly.
clear from the testimony of Tandiorio and Esikoff that the latter told Tandiorio
in words or in substance that he should not come to work the following morning
until his difficulties hid been straightened out, with Tandiorio responding that
he would be in regardless.
June 25, 1948
On the following morning Tandiorio came to work early, before the other
dressers. The skin boy declined. to give him skins, whereupon Tandiorio went
to the soaking vats, took out a batch of skins and commenced working. When
the other employees came in later and saw Tandiorio at work, they declined to
begin working themselves. At that time there were some 8,000 skins in the vats
valued at $4,000, which would have spoiled unless dressed promptly. Esikoff
asked Tandiorio to stop working and to go to the Union and straighten the matter
out. Tandiorio asked for permission to finish the batch of skins on which he
was working, which was granted. He finished the skins, ceased to work, and was
paid off. The other employees then went to work.
Tandiorio has not worked for the Company since that date. It is conceded
that at the time of the termination of his employment Tandiorio's dues were
fully paid up in the Union; that he was a member in good standing; and that
no demand was ever made on the Company by the Union for his discharge. •--
G'onclusions
. The General Counsel contends that the Union caused him to be, and that
Tandiorio was in fact, discharged because he refused to authorize the continua-
tion of checkoff of his union dues from his wages. These contentions are denied
by the Company and the Union on various grounds, factual and legal. My resolu
tion of the factual issues disposes of the case, making it unnecessary to pass
upon the novel legal questions.
,,QUEENS-PREMIER-WILLIAMS FUR DRESSING CORP. 51
The Company first contends that Tandiorio was not discharged but was merely
requested to desist working until his differences with the Union were resolved.
I find that whatever term is used to describe the result, Tandiorio ceased working
at the behest of the Company.
. Additionally the Company and the Union contend that even if Tandiorio was
discharged, the discharge was warranted by intolerable behavior in the plant
on his part. The General Counsel contends that Tandiorio's conduct was either
not a factor in or merely a pretext for his discharge.
It-seems quite clear from the testimony that during the year preceding June
1948, because of his resentment toward the Union and personal dislike of Hudyma,
Tandiorio had deliberately attempted to provoke and bait his fellow employees.
In this he succeeded. Tandiorio's flamboyant expressions, his offensively voiced
contempt for Hudyma and the Union, and abusive language toward the em-
ployees themselves are scarcely mere language of union dissidence.. Whatever
his ultimate purpose Tandiorio avowedly sought to provoke resentment among
his fellow employees. His statements, recounted heretofore, strongly suggest
a belief on Tandiorio's part that if he could compel the Union to expel him het
would be free of further obligation to it; and colorable argument for conclud
ing that his entire course of conduct during the year preceding June 1948 was
designed to secure his expulsion, and that he consciously chose the checkoff issue
as the vehicle for a pattern of behavior designed to make himself totally non
grata. This, however, is unnecessary to decide. The Union did not seek to expel
him. Instead the employees themselves became so aroused that they refused
to work with him any longer. It has been found that this action was spontaneous
and not the result of union direction or instruction. While the checkoff incident.
was the factor which precipitated the events which culminated in Tandiorio's
cessation of employment it was scarcely the factor which caused it. The cause
instead was Tandiorio's behavior. In any event the behavior, which resulted in
a complete break-down of operations in the plant, warranted dismissal. Under
such circumstances , it cannot be said with any degree of assurance that Tandiorio
was discharged for the refusal to sign the authorization card, and not for the
behavior.
It is consequently found that the evidence does not establish violations of
the statute. Recommendations for dismissal follow. It is therefore unneces-
sary to pass upon the legal issue as to whether, assuming that Tandiorio was
discharged for refusal to authorize the checkoff, the discharge would never-
theless not have constituted an unfair labor practice.16 It is equally unnecessary
to determine other questions raised by the Respondents ; nor the applicability
of the decision of the Board in the case of Salant & Salant, Inc., 88 NLRB.
816, where the Board said, in part , that "Section 302 [does not] create a new
unfair labor practice [and is not] even to be considered in determining whether
checkoff violates Section 8 of the Act."
u The Respondents ' argument on this issue , briefly stated , is substantially as follows
Section 102 forbids any finding of unfair labor practices based upon performance of the
checkoff clause of the contract . Tandiorio 's refusal to sign the authorization made it
impossible for the Company to perform the agreement without risking prosecution under
Section 302 . Efforts by an employee to compel an employer or union to breach a valid
collective bargaining agreement are not protected under Section 7 or 8 of the Act, and.
discharge therefor is for cause.
52 D G`I IOAT4 6f 13'A'f &Ah' L• Atidf kftA1f1dR6 WARD
COIhLusIONS ov LA*
1: Que€ns-Prerhiei-Williaims Fur Dressing Corp., is engaged in commerce
within the meaning of Section 2 (6) and ( 7) of the Act.
2. Lamb and Rabbit Workers Union; Local 85; International Fur and Leather
Workers Union of the United States and Canada, CIO , is a labor organization
witliin the meaning Of Section 2 ( 5) of the Act:
3. Queens-Premier -Williams Fur Dressing Corp ., has not engaged in unfair
labor practices within the meaning of Section 8 (a) (1) and 8 (a) (3) of
the Act.
4. Lamb and Rabbit Workers Union ; Local 85; International Fur and Leather
Workers Union of the United States and Canada, CIO ; has not engaged in unfair
labor practices within the meaning of Section 8 (li) (1) (A) and 8 (b) (2)
of the Act.
[Recommended Order omitted from publication in this volume.]