# Confectionery & Tobacco Drivers & Warehousemen's Union v. National Labor Relations Board > Court of Appeals for the Second Circuit · January 7, 1963 · 312 F.2d 108 URL: https://www.frixlaw.com/law-library/cases/6924291 ## Case - **Full name:** CONFECTIONERY AND TOBACCO DRIVERS AND WAREHOUSEMEN'S UNION, LOCAL 805, IBTCWHA v. NATIONAL LABOR RELATIONS BOARD, Respondent NATIONAL LABOR RELATIONS BOARD v. M. ESKIN & SON - **Court:** Court of Appeals for the Second Circuit - **Decided:** January 7, 1963 - **Citations:** 312 F.2d 108 - **Precedential status:** Published - **Opinion:** Concurring in part by Lumbard - **Judges:** Lumbard, Waterman - **Cited by:** 1 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6924291 ## Opinion text LUMBARD, Chief Judge (concurring and dissenting). I concur in the majority’s opinion except insofar as it reverses the Board’s finding that Eskin, the employer, cooperated with the Union in its attempt to impose unlawful conditions on the reinstatement of the striking employees, and that it thereby violated § 8(a) (1-4) of the NLRA, 29 U.S.C. § 158 (a) (1-4). I would sustain this finding, and therefore would grant enforcement of the Board’s order in its entirety, except with respect to employee Williamson, who, as Judge Waterman points out, was discharged because he failed to comply with the lawful requirement that he pay union dues and who never thereafter paid or offered to pay them. The portion of this case about which my brothers and I disagree concerns the *117 three members of the “in” group who, together with Williamson, were told by Jacobs, the plant manager, that they could have their jobs back but who were subsequently not rehired. In my judgment there is substantial evidence in the whole record, see Universal Camera Corp. v. N. L. R. B., 340 U.S. 474 , 71 S.Ct. 456 , 95 L.Ed. 930 (1951), to support the Board’s finding that Eskin acquiesced in and assisted the Union’s effort to impose unlawful conditions on the reinstatement of these employees, which conditions, as my brothers agree, were at least one explanation of their failure to return to work. The consistent testimony of the members of the “in” group is that when they contacted Jacobs on December 16, he told them that they could have their jobs back if they first obtained “clearance” from the Union. Smith testified that he was told that he “would have to be cleared with Local 805” and was given the Union’s telephone number. Kupic testified that Jacobs gave him a telephone number .and told him to “call it and get clearance .from the union.” Balajathy testified that Jacobs saw him and Sokoloff together .and said to them, “Before you come back to work, you have got to get clearance from Local 805.” Jacobs offered to provide the telephone number and said that despite the lateness of the hour someone would be at the Union offices. Sokoloff testified that Jacobs told him that he “should check with the union” to see whether he was “still a member in full standing.” Williamson testified that Jacobs “said something about going to the Union, Local 805, and straightening it out with them or something like that.” Jacobs’ own testimony was that he instructed the employees “to contact their union to see if their dues were paid and they were in good standing with their union, because we still were under contract with Local 805.” The trial examiner credited the testimony of the employees, which was not contradicted by Jacobs except as to the precise words used and his recollection of a specific reference to the payment of dues. On this record, I cannot agree with my brothers that the Board’s conclusion that the employer participated in the Union’s imposition of unlawful conditions on reinstatement is “unjustifiable speculation.” The majority states that Eskin could insist upon Union clearance “if that clearance turned upon the payment of all past dues.” But it is only the majority’s speculation, unsupported by the record, that this is what Jacobs had in mind when he spoke to the employees. According to the employees’ testimony, Jacobs never referred specifically to the payment of dues; even by his own testimony, Jacobs’ remarks were not confined to the question of dues. Jacobs knew that the employees were dissatisfied with the Union and that their disagreement with it had progressed so far that they were seeking to obtain new representation. In such a situation, it was surely within the bounds of permissible inference for the Board to conclude that Jacobs’ references to Union “clearance” and “good standing” in the Union pertained to more than the payment of dues. Even if, as the majority suggests, the employer had “some reason” to believe that dues might be unpaid, this scarcely explains the blanket requirement of a general Union clearance imposed on all employees. It is, of course, not material that the employer may not have known the precise nature of the conditions which were imposed. The imposition of any conditions beyond the payment of Union dues and fees was unlawful. Radio Officers’ Union of the Commercial Telegraphers Union, AFL v. N. L. R. B., 347 U.S. 17, 40 , 74 S.Ct. 323, 335 , 98 L.Ed. 455 (1954); N. L. R. B. v. Bell Aircraft Corp., 206 F.2d 235, 238 (2 Cir. 1953). Nor do subsequent acts, such as the rehiring of several employees who did not sign the Union’s prepared statement, avoid the effect of the employer’s participation in the Union’s scheme. I would grant enforcement of the portions of the Board’s order based on the finding that the employer violated § 8(a) (1-4) of the NLRA. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6924291. Public record. Not legal advice.