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National Labor Relations Board v. A & B Zinman Inc.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


decided: February 3, 1967.

NATIONAL LABOR RELATIONS BOARD, PETITIONER
v.
A & B ZINMAN, INC. ET AL., RESPONDENTS

Lumbard, Chief Judge, Friendly, and Hays, Circuit Judges.

Author: Hays

HAYS, Circuit Judge.

The Board seeks enforcement of its order based upon a finding of violation by respondent Union of Sections 8(b) (2) and (1) (A) of the National Labor Relations Act, 29 U.S.C. § 158(b) (2) and (1) (A)*fn1 and by respondent Employers of Section 8(a) (3) and (1), 29 U.S.C. § 158 (a) (3) and (1).*fn2

Substantial evidence in the record supports the conclusion of the Board that Hart, an employee first of Zinman and then of Horn, was discharged from both positions at the instance of the Union acting through its assistant business representative Joseph Thompson.

The circumstances of Hart's discharge were as follows:

Hart was a member of the Union. An election of Union officials was about to be held and Hart announced his support for one Nusser who was chosen to run for Thompson's position as assistant business representative. It was decided that Hart would nominate Nusser and would assist in managing his campaign. Upon learning of this activity Thompson insisted on Hart's discharge from the position he then held with Zinman. Hart then secured a position with Horn, and Thompson also brought about his discharge from that position.

The Board, in addition to the usual order to cease and desist, ordered that Hart be made whole for loss of pay and be restored to his position if it was still available.

By procuring the discharge of Hart for his activities within the Union, to wit, his support of a particular candidate for Union office, the Union violated Section 8 (b) (2) in causing Hart's employers to discriminate in violation of Section 8(a) (3). Local 138, Int'l Union of Operating Engineers v. N.L.R.B., 321 F.2d 130, 136-37 (2d Cir. 1963); N.L.R.B. v. Local 138, Int'l Union of Operating Engineers, 254 F.2d 958 (2d Cir. 1958), enforcing 118 N.L.R.B. 669 (1957); Brewers and Maltsters Local 6 v. N.L.R.B., 301 F.2d 216, 218-24 (8th Cir. 1962). The Union and the Employers also violated Section 8(a) (1) and 8(b) (1) (A) by restraining or coercing Hart in violation of his Section 7 rights.

The respondent Union's reliance on N.L.R.B. v. Miranda Fuel Co., Inc., 326 F.2d 172 (2d Cir. 1963) and N.L.R.B. v. Local 294, Int'l Bhd. of Teamsters, 317 F.2d 746 (2d Cir. 1963) is entirely misplaced. In those cases there was nothing to indicate that the discharge of the employees was based upon or connected with any union activity. Here the discrimination against Hart was based solely upon his "union-connected activities" (N.L.R.B. v. Local 294, Int'l Bhd. of Teamsters, supra, 317 F.2d at 749).

Order enforced.

Disposition

Order enforced.


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