Federation of Union Representatives v. National Labor Relations Board

339 F.2d 126
CourtCourt of Appeals for the Second Circuit
DecidedNovember 20, 1964
DocketNos. 407, 408, Dockets 28558, 28598
StatusPublished
Cited by1 cases

This text of 339 F.2d 126 (Federation of Union Representatives v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Federation of Union Representatives v. National Labor Relations Board, 339 F.2d 126 (2d Cir. 1964).

Opinion

SMITH, Circuit Judge.

In ILGWU v. N. L. R. B., 339 F.2d 116, 2 Cir., a representation proceeding, in an opinion filed today, we upheld the Board’s determination in 131 NLRB 111 that Intel-national Ladies’ Garment Workers’ Union (ILGWU), itself an international labor organization, is an employer of employees and engaged in commerce within the meaning of the National Labor Relations Act, 29 U.S.C. § 151 et seq. The present unfair labor practice case grew out of the efforts of Federation of Union Representatives, known as FOUR, to organize business agents, organizers, educational directors and other personnel in union label and political work in the employ of ILGWU. The structure and history of ILGWU and the make-up and organization of FOUR are fully set forth in the opinion in the representation proceeding. The complaint in the instant case was based on charges that the employer ILGWU engaged in unfair labor practices in violation of § 8(a) (1) and (3) of the Act by interrogations, threats, discriminatory transfers and discharges, reduction of allowances, increase of job duties, withholding of customary wage increases, establishment of a grievance and other committees and promise of benefits to encourage the use of the [128]*128■committees. The Board, held the discharges and reduction in allowances not discriminatory, but found coercion to induce employees to renounce FOUR by interrogation, solicitation, threats, creation of a grievance committee and by withholding customary wage increases.

FOUR petitions to review the finding that the discharge of one Constantine Sedares was not as a result of union (FOUR) activity. The Board petitions for enforcement of its order, including back pay on the wage increase withholding.

We find no error in the ruling as to ■Sedares, and dismiss FOUR’S petition for review. We find no error in the ruling as to the wage increase withholding, ■and will enforce that portion of the Board’s order. We find no substantial support in the record as a whole of the ■other findings of coercion and decline to enforce the Board’s order in those re.spects.

I

If Sedares was discharged partly because of participation in the •campaign to establish FOUR and partly because of some neglect or delinquency, a violation of the Act would be made out. N. L. R. B. v. Jamestown Sterling Corp., 211 F.2d 725, 2 Cir. 1954, N. L. R. B. v. Great Eastern Color Lithographic Corp., 309 F.2d 352, 2 Cir. 1982. The record, however, supports the finding that the discharge was solely for cause, and not in any respect because of participation in the FOUR campaign.

It is amply established on the record that Sedares, although possessed ■of considerable ability, was a headstrong, .and at times insubordinate union organizer. He was graduated from the ILG WU Training Institute in June 1958. Thereafter he worked for the ILGWU in the Upper South Department, the Northeast Department, the Dressmakers’ Joint Council, and from March 1960 until his ■eventual discharge December 9, 1960 with the Eastern Region. Kramer, a -vice president of the ILGWU was Gener-al Manager of the Eastern Region. An organizing campaign was in progress at Tiny Town Togs in Troy, New York under Walter De Young. Early in October Sedares was placed in charge of this campaign under De Young when De Young was needed in another organizing campaign. Sedares was told to clear leaflets and major expenses with Kramer. The ILGWU was successful in the election, but thereafter it was found that Sedares had run up an unauthorized bill of $250 for a dinner during the campaign, and without authorization had offered to pay the Tiny Town employees for time lost in voting at the off-plant election. He had yelled at Nash, manager of the Troy local, kicked over a chair and stormed out of the room when Nash attempted to open negotiations with Tiny Town after the election results were known. It was found also that Sedares had been rude to the clerical staff in the New-burgh office and had left an insulting note for the manager of that office. Kramer, checking on Sedares’ conduct, had difficulty getting in touch with him, but finally saw him on November 30, De Young and Kramer’s assistant Janis also being present. After discussing the complaints against Sedares, Kramer told him he was discharged. De Young, however, prevailed upon Kramer to give Sedares another chance at Newark, N. J. under one Detlefsen. Kramer agreed and returning to the room where Sedares was, told him he would be given a last chance, at Newark under Detlefsen. Sedares went to Newark. Detlefsen soon became annoyed at Sedares’ attitude and failure to obey instructions in reporting to the office, and before the end of the week called Kramer and asked him to take Se-dares back. Kramer, however, told Det-lefsen to inform Sedares that Kramer’s instructions were to discharge Sedares. Detlefsen then wrote a letter to Sedares informing him of his discharge. On receipt of the letter Sedares on December 13 went to see Detlefsen and was told he was discharged because he was not fitting into Detlefsen’s team. On December 14 Sedares went to see Kramer to find the “real reason” for his discharge and accused Kramer of firing him for union [129]*129activity. The examiner and the Board found that Kramer had not at that time heard anything about union activity among staff members. Sedares had for some time been active in the group planning the formation of a staff union, which was formally organi2;ed as FOUR at a meeting in New York on December 11. De Young knew of the plans at least by November 22, but did not inform Kramer of them. The finding by the examiner of lack of knowledge by Kramer at the time of the firing and rehiring of Sedares on November 30 and his final discharge on December 9 is borne out both by Kramer’s rehiring of Sedares on the 30th and by Kramer’s reaction in apparent surprise to Sedares’ accusation on the 14th. Moreover, the finding as to lack of knowledge of Sedares’ union activity by Kramer and Detlefsen at the time of the firing is based partly on the examiner’s assessment of the credibility of the witnesses who testified before him. Such matters are peculiarly within the province of the trier of the facts. N. L. R. B. v. Walton Mfg. Co., 369 U.S. 404, 407-408, 82 S.Ct. 853, 7 L.Ed.2d 829, N. L. R. B. v. Marcus Trucking Co., 286 F.2d 583, 590, 2 Cir. 1961. We would not be justified in upsetting his finding, accepted by the Board, merely because of the coincidence of the dates, suspicious as that may be. The finding must stand and it is dispositive of the issue of discriminatory discharge. The employer acted in the firing solely through Kramer and Detlefsen. De Young’s knowledge was found not to have been communicated to them. FOUR contends that De Young’s knowledge is that of the ILGWU. This, however, does not follow in any sense meaningful here. What we seek to determine is the cause of the firing.

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339 F.2d 126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/federation-of-union-representatives-v-national-labor-relations-board-ca2-1964.